Opinions of the United 2004 Decisions States Court of Appeals for the Third Circuit
3-5-2004
USA v. Hayward Precedential or Non-Precedential: Precedential
Docket No. 02-4540P
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Recommended Citation "USA v. Hayward" (2004). 2004 Decisions. Paper 895. http://digitalcommons.law.villanova.edu/thirdcircuit_2004/895
This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova University School of Law Digital Repository. It has been accepted for inclusion in 2004 Decisions by an authorized administrator of Villanova University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu. PRECEDENTIAL Shelley Stark Karen Sirianni Gerlach (Argued) UNITED STATES Michael J. Novara COURT OF APPEALS Renee Pietropaolo FOR THE THIRD CIRCUIT Lisa B. Freeland Office of the Federal Public Defender __________ 1001 Liberty Avenue 1450 Liberty Center No. 02-4540 Pittsburgh, Pennsylvania 15222 __________ Attorneys for Appellant, UNITED STATES OF AMERICA Scott Hayward
v. Mary Beth Buchanan Kelly R. Labby (Argued) SCOTT HAYWARD, Bonnie R. Schlueter Appellant Office of the United States Attorney __________ 700 Grant Street Suite 400 On Appeal from the United States Pittsburgh, Pennsylvania 15219 District Court for the Western District of Pennsylvania Attorneys for Appellee, Criminal Action No. 02-cr-00063 United States of America District Judge: Honorable Alan N. Bloch __________ Garth, Circuit Judge: Argued December 11, 2003 ___________ Scott Hayward (“Hayward”) appeals from the District Court’s Before: AMBRO, FUENTES, and judgment and sentence. Judgment was GARTH, Circuit Judges entered against Hayward after a jury convicted him of violating 18 U.S.C. § (Opinion Filed: March 5, 2004) 2423(a) (transportation of a minor with intent to engage in criminal sexual OPINION activity). He was sentenced to 15 years in prison, with a three-year term of __________ supervised release, and was ordered to make restitution in the amount of $12,289.78. We will affirm Hayward’s conviction, but we will remand the case
-1- to the District Court for re-sentencing. Hayward also distributed an itinerary supplied by the World Cheerleading I. Association and detailed the rules for the trip, which included prohibitions on At the time the facts giving rise to smoking, drinking, drug use and contact this case occurred, Hayward and his wife with boys. Immediately after the owned the Pennsylvania Cheerleading parents’ meeting, Hayward met with the Center (“PCC”), a competitive six girls attending the tour and told them cheerleading school located outside of that the itinerary was “just for show” and Pittsburgh, Pennsylvania. PCC that they would “have fun” on the trip. conducted after-school and weekend He told the cheerleaders they would be classes in cheerleading, tumbling and allowed to drink alcohol on the trip. He acrobatics, and prepared its students for also said that “whatever happened in team cheerleading competitions. London would stay in London.” Hayward worked at PCC as a Hayward testified at trial that he did so cheerleading coach. because the girls were upset after reading the strict itinerary and were threatening In January 2000, PCC and other not to attend the tour. teams were invited to take part in the World Cheerleading Association’s Upon arriving at the airport, the “World Tour of Champions” to be held girls and their parents were informed that on April 8-17, 2000, which involved a Mary Hayward and Larry Guerrero were tour of Europe and a national not leaving with the group, but would competition. V-14, V-15 and V-18,1 join them a few days later. When the along with three other cheerleaders aged cheerleaders left for England, Scott 16 and 17, went on the tour with Hayward was the only chaperone. Hayward. At the hotel in London, the girls Prior to the trip, Hayward held a slept three to a room – V-14, V-15 and meeting for the participating V-18 shared one room, and the other cheerleaders’ parents, at which he stated three girls shared an adjoining room. On that he and his wife, Mary Hayward, and the night of April 12, 2000, Hayward a PCC coach named Larry Guerrero took the girls to a nightclub in London would serve as chaperones for the trip. where they drank alcohol. The group returned to the hotel room in which the 16-year olds and the 17-year-old were 1 The record, in deference to their age, identifies the girls as V-14, V-15 and V-18. We will employ this same identification throughout this opinion.
-2- staying.2 Hayward began to rub the back significant testimony concerning the of one of the girls, slipping his hand sequence of events that took place that inside her pants. Hayward stated to evening was V-14's. She testified that another girl: “Babe, I’m sleeping with Hayward pushed her head toward his you tonight.” He then appeared to doze penis. Some time later, he removed his off. Both of the 16-year-olds and the 17- trousers and placed V-14's and V-18's year old also fell asleep, at which point hands on his penis. Hayward awoke and announced that he was going to sleep in the adjoining room The three girls then went to the shared by V-14, V-15 and V-18. hotel lobby, and later returned to their room once Hayward had vacated it. The Once inside the adjoining room, following day, V-14 reported the Hayward directed V-14, V-15 and V-18 incident to a cheerleading judge to push two of the three single beds affiliated with the World Cheerleading together. V-14 and Hayward lay down Association, who, in turn, alerted on the beds, and V-18 jumped on Scotland Yard. Hayward and then rolled off to one side. V-15 then joined the others on the bed. Scotland Yard investigators took At this point, V-14 and V-15 were lying videotaped statements from V-14, V-15 to one side of Hayward, and V-18 was and V-18, and performed tests on semen on his other side. samples found on the clothing worn by V-14 and V-18 on the night in question. The precise order of events Hayward was questioned by Scotland thereafter is unclear. Initially, Hayward Yard, and gave two recorded statements. pulled down V-15's shirt and fondled her Hayward also gave blood samples to breasts. V-15 testified: “He began to investigators two days after the assaults untie my shirt. It tied back here. It was occurred. The toxicology report just two strings. And he rolled me over, evidenced no drugs or alcohol in his pulled my shirt down, and fondled me.” blood, although due to the lapse of time it was inconclusive as to Hayward’s While he was fondling V-15, impairment at the time these events took Hayward pulled V-14's face toward his place. DNA testing established that and forced her to kiss him. The there was only one chance in a billion that a semen sample taken from the girls’ clothing was not Hayward’s semen. 2 Hayward claims he blacked out after returning to the hotel. The When Hayward returned to the testimony which appears of record is United States, he was charged and therefore the testimony of the indicted in a two-count indictment by a cheerleaders. grand jury in the Western District of
-3- Pennsylvania. Count One charged Hayward with transporting a female in Hayward with transporting two females interstate and foreign commerce with the under age 18 in interstate and foreign intent to engage in illegal sexual activity, commerce with the intent to engage in in violation of 18 U.S.C. § 2421.4 illegal sexual activity, in violation of 18 Hayward pled not guilty and testified U.S.C. § 2423(a).3 Count Two charged that he had blacked out and remembered nothing after returning to the hotel. The jury convicted Hayward of 3 18 U.S.C. § 2423 provides in Count One, finding that he had violated relevant part: Transportation of minors § 2423(a) with respect to V-14 and V- (a) Transportation with intent to 15. Hayward was acquitted of Count engage in criminal sexual activity – A person who knowingly the anal or genital opening of transports an individual who has another by a hand or finger or by not attained the age of 18 years in any object, with an intent to interstate or foreign commerce, or abuse, humiliate, harass, degrade, in any commonwealth, territory or or arouse or gratify the sexual possession of the United States, desire of any person; or with intent that the individual (D) the intentional touching, not engage in prostitution, or in any through the clothing, of the sexual activity for which any genitalia of another person who person can be charged with a has not attained the age of 16 criminal offense, or attempts to do years with an intent to abuse, so, shall be fined under this title, humiliate, harass, degrade, or imprisoned not more than 15 arouse or gratify the sexual desire years, or both. of any person[.] 4 18 U.S.C. § 2246(2) defines 18 U.S.C. § 2421 provides: “sexual act” as: Transportation generally. Whoever knowingly transports any (A) contact between the penis and the individual in interstate or foreign vulva or the penis and the anus, commerce, or in any Territory or and for purposes of this Possession of the United States, with subparagraph contact involving intent that such individual engage in the penis occurs upon penetration, prostitution, or in any sexual activity for however, slight; which any person can be charged with a (B) contact between the mouth and criminal offense, or attempts to do so, the penis, the mouth and the shall be fined under this title or vulva, or the mouth and the anus; imprisoned not more than 10 years, or (C) the penetration, however slight, of both.
-4- Two, which charged him with violating under U.S.S.G. § 2A3.1; (5) the District § 2421 (transporting for illegal sexual Court failed to grant Hayward’s request activity) with respect to V-18. The for a downward departure at sentencing District Court Judge sentenced Hayward because it did not understand that it had to 180 months in prison for attempted the authority to do so; and (6) the District criminal sexual abuse pursuant to Court should not have included the § 2A3.1 of the 2002 United States cheerleaders’ parents as victims for Sentencing Guidelines (“U.S.S.G.”), restitution purposes. rather than criminal sexual contact under § 2A3.4 .5 He also sentenced Hayward to As to Hayward’s first, second and a 3-year term of supervised release, and third claims, we find no error in the ordered him to make restitution to his admission of the expert testimony and victims and their parents in the amount the tape recordings at trial or in the jury of $12,289.78. Hayward filed a timely charge. We agree with Hayward on his notice of appeal. fourth claim, and will reverse and remand the case for re-sentencing for Hayward makes six claims on criminal sexual contact pursuant to appeal: (1) the District Court improperly U.S.S.G. § 2A3.4. As a result, allowed expert testimony from Hayward’s fifth claim (downward behavioral scientist Kenneth Lanning departure) is moot. Finally, we reject pertaining to the general profile of an Hayward’s sixth claim (restitution), and acquaintance molester; (2) the District will affirm the District Court’s restitution Court at trial improperly allowed the order. prosecution to play Hayward’s tape recorded statements to Scotland Yard We have jurisdiction to hear this investigators; (3) the District Court appeal pursuant to 18 U.S.C. § 1291. should have instructed the jury that criminal sexual activity had to be “the II. dominant” – rather than “a significant or motivating” – purpose of Hayward’s trip We briefly address Hayward’s to England; (4) Hayward should have arguments that the District Court erred at been sentenced for criminal sexual trial in admitting certain evidence and in contact under U.S.S.G. § 2A3.4, instead charging the jury. We hold his of for attempted criminal sexual abuse arguments to be meritless.
1. 5 We have reproduced the text of The first of these claims is that the U.S.S.G. §§ 2A3.1-2A3.4 in our District Court improperly allowed expert analysis, infra. Accordingly, we do not include those Guidelines here. testimony adduced from behavioral
-5- scientist Kenneth Lanning (“Lanning”) victims from dysfunctional homes, pertaining to the general profile of an formulation of a customized seduction acquaintance molester. The District process, lowering the victim’s Court Judge, in response to Hayward’s inhibitions about sex, isolating the pre-trial motion to bar Lanning’s victim, and soliciting the victim’s testimony,6 limited Lanning’s testimony cooperation in the victimization process. to “acquaintance child molesters’ pattern of activity,” and prohibited Lanning Hayward argues that Lanning’s from testifying as to Hayward himself or testimony violated Rule 704(b) of the as to Hayward’s intent. Federal Rules of Evidence, which prohibits expert witnesses from After testifying as to his testifying with respect to the mental state experience and credentials, Lanning was of a defendant in a criminal case and qualified by the District Court Judge as from stating an opinion or inference as to an expert in the field of behavioral whether the defendant had the mental science.7 Lanning then testified about state constituting an element of the crime various types of child molesters, charged. Hayward contends that focusing primarily on “acquaintance” Lanning’s testimony effectively removed child molesters. Lanning described the the determination of Hayward’s intent patterns exhibited by many acquaintance from the jury, in violation of Rule child molesters, including selection of 704(b).
6 We have held that under Rule In its response to Hayward’s 704(b) “expert testimony is admissible if motion in limine concerning Lanning’s it merely supports an inference or testimony, the Government stated that conclusion that the defendant did or did “Mr. Lanning is not going to answer not have the requisite mens rea, so long hypothetical questions about Scott as the expert does not draw the ultimate Hayward’s intent . . . .” inference or conclusion for the jury and 7 Lanning testified that he had the ultimate inference or conclusion does been an FBI agent for 30 years, he had not necessarily follow from the been a Supervisory Special Agent in the testimony.” United States v. Bennett, FBI’s Behavioral Sciences Unit for 20 161 F.3d 171, 185 (3d Cir. 1998) years, he was a founding member of the (quoting United States v. Morales, 108 American Professional Society on the F.3d 1031, 1038 (9th Cir. 1997)) Abuse of Children, he was the author of (internal quotations omitted). a monograph entitled “Child Molesters and Behavioral Analysis,” he held two masters degrees, and he had taught university courses in behavioral science.
-6- Furthermore, in a Seventh Circuit an acquaintance molester. His testimony case, in which Lanning qualified as an was admissible under Rule 704(b) expert and in which he testified under because, as in Romero, Lanning “never circumstances similar to those in this directly opined as to [Hayward’s] mental case, Lanning’s testimony was admitted state when he [returned to the hotel room and upheld against a Rule 704(b) attack with the cheerleaders].” Id. at 586. identical to Hayward’s attack here. See Rather, Lanning “focused primarily on United States v. Romero, 189 F.3d 576 the modus operandi – on the actions (7th Cir. 1999). In Romero, Lanning normally taken by child molesters to find was only permitted to testify to “the and seduce their victims.” Id. He drew methods and techniques employed by no conclusion as to Hayward’s intent. preferential child molesters. The Thus, his testimony is admissible under prosecution would not ask Lanning to Rule 704(b). give his opinion about Romero or to comment about his intent or culpability.” We review a district court’s Id. at 582. On redirect examination, decision to admit or exclude expert however, the testimony for abuse of discretion. United States v. Watson, 260 F.3d 301, prosecution posed a series 306 (3d Cir. 2001); Bennett, 161 F.3d at of hypothetical actions to 182. The District Court properly Lanning and asked him if exercised its discretion in admitting these actions would indicate Lanning’s testimony. someone who would act on his sexual fantasies about 2. children . . . [T]he hypotheticals described Hayward next argues that the tape actions taken by Romero recorded statements of Scotland Yard that had already been investigators questioning Hayward were produced in evidence[.] improperly admitted and played for the jury, because they violated Federal Rule Id. at 584. The Seventh Circuit held that of Evidence 403.8 Hayward claims on Lanning’s responses did not violate Rule 704(b) because “[h]is testimony did not amount to a statement of his belief about 8 Rule 403 allows the exclusion of what specifically was going through otherwise relevant evidence if its Romero’s mind when he met [the probative value is substantially victim].” Id. at 586. outweighed by the danger of unfair prejudice, confusion of the issues, or In this case, Lanning’s testimony misleading the jury, or by considerations elucidated the motives and practices of of undue delay, waste of time, or
-7- appeal that the tapes, which contained to convict Hayward. The District Court Hayward’s statements to Scotland Yard charged the jury: investigators, were prejudicial under Rule 403 because they allowed the It is not necessary for the investigators to testify without taking the government to prove that stand or being subject to cross- the illegal sexual activity examination. However, the record was the sole purpose for the reveals that the Scotland Yard detectives transportation. A person who questioned Hayward on the tape may have several different were present in court and even testified purposes or motives for on behalf of the Government at such travel, and each may Hayward’s trial. prompt in varying degrees the act of making the The contents of the tapes were journey. The government clearly probative of the facts surrounding must prove beyond a the crime charged. Hayward’s taped reasonable doubt, however, statements revealed his whereabouts on that a significant or the night of April 12, 2000, his reason motivating purpose of the for being in London with the travel across state or cheerleaders, and his custody of and foreign boundaries was to control over the cheerleaders during the have the individual trip. The tapes contain no evidence as to transported engage in Hayward’s criminal sexual intent, as he illegal sexual activity. In maintained during the questioning that other words, the illegal he had no memory of the event. The sexual activity must have District Court did not abuse its discretion not been merely incidental in admitting the tapes into evidence. to the trip.
3. App. Vol. IV p. 893 at 16:7-16 (emphasis added). Next, Hayward argues on appeal that the District Court should have At trial, Hayward argued that the instructed the jury that criminal sexual jury should be instructed to find that the activity had to be “the dominant” – criminal sexual activity with which rather than “a significant or motivating” Hayward was charged was “a dominant – purpose of the trip to England in order purpose” of his trip to England. The District Court Judge instead charged the jury that the criminal sexual activity had needless presentation of cumulative to be “a significant or motivating evidence. purpose” of Hayward’s trip to England.
-8- On appeal, Hayward’s argument has (10th Cir. 1997); United States v. Sirois, changed. He now argues that the 87 F.3d 34, 39 (2d Cir. 1996); United District Court Judge should have used States v. Campbell, 49 F.3d 1079, 1082- the words “the dominant purpose” in the 83 (5th Cir. 1995); United States v. Ellis, jury charge. Hence, the charge that 935 F.2d 385, 389-90 (1st Cir. 1991); Hayward argues for on appeal is United States v. Snow, 507 F.2d 22, 24 substantially different from the charge (7th Cir. 1974); United States v. Harris, that Hayward requested at trial, raising a 480 F.2d 601, 602 (6th Cir. 1973). Of serious question as to whether this issue these authorities, United States v. Vang has been preserved. We do not rest our was the case relied upon by the District position on preservation, however. Court Judge in Hayward’s case.
Hayward points to no case in In Vang, the defendants which any Court of Appeals required a repeatedly raped underage girls during jury instruction that criminal sexual the course of an interstate car trip, and activity must be the dominant purpose of they were charged under the Mann Act interstate travel to support a conviction and 18 U.S.C. § 2243(b). The District under 18 U.S.C. § 2423(a).9 The Court instructed the jury that the Government relies on decisions by the government need not prove “that a First, Second, Fifth, Sixth, Seventh and criminal sexual act was the sole purpose Tenth Circuits, in which criminal sexual for a defendant traveling from one state activity was one of a number of multiple to another, but the government must motives for interstate travel. Those prove that it was a dominant purpose, as courts declined to reverse convictions opposed to an incidental one,” and where the respective district court had denied the defendants’ request to require refused or failed to give “the dominant a finding that a criminal sexual act was purpose” jury instruction that Hayward the dominant purpose of the trip. 128 now requests. See United States v. F.3d at 1069 (italics added). The Garcia-Lopez, 234 F.3d 217, 220 (5th Seventh Circuit affirmed. Similarly in Cir. 2000); United States v. Vang, 128 this case, the District Court’s charge that F.3d 1065, 1072 (7th Cir. 1997); United “a significant or motivating purpose of States v. Meacham, 115 F.3d 1488, 1495 the travel across state or foreign boundaries was to have the individual transported engage in illegal sexual 9 Hayward cites United States v. activity. In other words, the illegal Mortensen, 322 U.S. 369 (1944), and sexual activity must not have been Hansen v. Haff, 291 U.S. 559 (1934), in merely incidental to the trip” was not in support of his position, but those cases, error. which do not involve multiple motives for interstate travel, are inapposite.
-9- III.
We now turn to Hayward’s permitting, or offering or arguments concerning his criminal seeking by notice or sentence. advertisement, a person less than 18 years of age to 1. engage in sexually explicit conduct for the purpose of First, Hayward argues that the producing a visual District Court Judge improperly depiction of such conduct, sentenced him for attempted criminal apply § 2G2.1 . . . . sexual abuse of V-14 under U.S.S.G. (2) If the offense involved § 2A3.1. Hayward claims that the criminal sexual abuse, evidence supports only a sentence under attempted criminal sexual U.S.S.G. § 2A3.4 for criminal sexual abuse, or assault with contact with V-14.10 intent to commit criminal sexual abuse, apply § Hayward was convicted of 2A3.1 (Criminal Sexual violating 18 U.S.C. § 2423(a) Abuse; Attempt to Commit (transportation of a minor with intent to Criminal Sexual Abuse). If engage in criminal sexual activity) based the offense involved upon his actions with V-14 and V-15. criminal sexual abuse of a The corresponding Guideline for a minor who had not attained violation of § 2423(a) is U.S.S.G. the age of 12 years, § § 2G1.1.11 Under that Guideline, the 2A3.1 shall apply, regardless of the ‘consent’ 10 A District Court’s choice of of the victim. sentencing guidelines is subject to (3) If the offense did not plenary review. United States v. Diaz, involve promoting a 245 F.3d 294, 300 (3d Cir. 2001); commercial sex act, and United States v. Smith, 186 F.3d 290, neither subsection (c)(1) 297 (3d Cir. 1999). nor (c)(2) is applicable, apply § 2A3.2 (Criminal 11 § 2G1.1. Promoting A Sexual Abuse of a Minor Commercial Sex Act or Prohibited Under the Age of Sixteen Sexual Conduct Years (Statutory Rape) or *** Attempt to Commit Such (c) Cross References: Acts) or § 2A3.4 (Abusive (1) If the offense involved Sexual Contact or Attempt causing, transporting, to Commit Abusive Sexual
-10- sentencing judge may select among purposes of this U.S.S.G. § 2A3.1 (Criminal Sexual subparagraph contact Abuse), § 2A3.2 (Statutory Rape), or involving the penis § 2A3.4 (Abusive Sexual Contact), as occurs upon appropriate. The District Court Judge penetration, acknowledged this, and he also however, slight; recognized that sexual abuse offenses are (B) contact between the treated more seriously than are sexual mouth and the penis, contact offenses. the mouth and the vulva, or the mouth In selecting the sentencing and the anus; guideline, the District Court Judge (C) t h e p en e t r a ti o n , examined §§ 2A3.1, 2A3.2, and 2A3.4. however slight, of As Hayward does not contest the District the anal or genital Court’s determination that § 2A3.2 opening of another (statutory rape) was inapplicable, we will by a hand or finger not address that section of the Guidelines or by any object, here. with an intent to abuse, humiliate, Section 2A3.1 applies when a harass, degrade, or defendant engages in or attempts to arouse or gratify the engage in criminal sexual abuse, which sexual desire of any is defined as “knowingly engag[ing] in a person; or sexual act with another person who (1) (D) the intentional has attained the age of 12 years but has touching, not not attained the age of 16 years; and (2) through the clothing, is at least four years younger than the of the genitalia of person so engaging[.]” 18 U.S.C. another person who § 2243(a). As noted above, “sexual act” has not attained the is defined as: age of 16 years with an intent to abuse, (A) contact between the humiliate, harass, penis and the vulva degrade, or arouse or or the penis and the gratify the sexual an u s, and for desire of any person[.]
Contact), as 18 U.S.C. § 2246(2). appropriate.
-11- Section 2A3.4 applies when a The Presentence Investigation defendant engages in or attempts to Report (“PSIR”) recommended that engage in abusive sexual contact. Hayward be sentenced as to both V-14 According to the Guidelines, “[t]his and V-15 under § 2A3.4 for abusive section covers abusive sexual contact not sexual contact. PSIR pp. 7-8. The amounting to criminal sexual abuse.” District Court Judge agreed that Hayward U.S.S.G. § 2A3.4 cmt. Sexual contact had committed sexual contact with V-15 here is defined as “the intentional when he touched her breasts. As to V- touching, either directly or through the 14, however, he determined that clothing, of the genitalia, anus, groin, Hayward had committed an attempted breast, inner thigh, or buttocks of any sexual abuse by pushing her head toward person with an intent to abuse, humiliate, his penis, thereby attempting to engage in harass, degrade, or arouse or gratify the oral sex with her. Hayward argued prior sexual desire of any person[.]” 18 to the sentencing determination that he U.S.C. § 2246(3). could not have taken the requisite substantial step toward oral sex with V- The District Court Judge explored 14 because, according to the trial the distinction between § 2A3.1 and testimony, he was clothed when he § 2A3.4, and observed that “if the pushed her head down toward his penis. defendant’s criminal conduct amounted In response, the District Court Judge to sexual “contact” or attempted sexual wrote: “contact”, as opposed to a sexual “act” or attempted sexual “act”, this Guideline Although the Court agrees [§2A3.4] governs.” 12 that it may be inferred from V -1 4's testimony that defendant’s pants were still 12 on when he tried to push her The parties dispute the required head toward his penis, the standard of proof at sentencing. The e v i d e nc e n o n e t h e le ss Government argues that it must – and establishes by clear and did – establish attempted criminal sexual convincing evidence that the abuse by a “preponderance of the defendant, in starting to evidence.” Hayward, relying on United push V-14's head toward his States v. Kikumura, 918 F.2d 1084 (3d penis, was attempting to Cir. 1990), argues that a “clear and convincing” standard of proof is required here, and the Government did not supply such proof. It is not record that Hayward should have been necessary for us to determine which sentenced for abusive sexual contact, standard applies in this case. Under and not for attempted criminal sexual either standard, it is evident from the abuse.
-12- have her perform oral sex on require the actual touching, a meeting of him. body surfaces. See United States v. Knox, 977 F.2d 815, 818 (3d Cir 1992) App. Vol. I p. 23. (“It is axiomatic that when the statutory language is clear, the words must be Hayward correctly points out that interpreted in accordance with their the District Court Judge did not define ordinary meaning.”). We therefore what constitutes an attempt to commit a interpret the statutory definition of a sexual act. The ambiguous and “sexual act” under § 2246(2), which in equivocal act of pushing a victim’s head this case speaks of contact between the toward one’s clothed penis does not meet penis and the mouth, to require direct any definition of a “sexual act” as skin-to-skin contact or touching of body defined in 18 U.S.C. § 2246(2) and does parts.13 In contrast to the term “sexual not constitute a substantial step toward act,” which requires skin-to-skin achieving “ contact between the mouth and the penis” under 18 U.S.C. § 2246(2)(B). 13 We are aware that other courts, which have sentenced defendants under The term “contact” is the 18 U.S.C. § 2422(b) (coercion and controlling term set forth in § 2246 for enticement), have interpreted an each of the “sexual acts” that are defined. attempted “sexual act” pursuant to 18 In each section, the statute requires U.S.C. § 2246(2) as apparently not “contact between the penis and the vulva requiring skin-to-skin contact. See, e.g., or the penis and the anus,” § 2246(2)(A), United States v. Panfil, 338 F.3d 1299 and “contact between the mouth and the (11th Cir. 2003); United States v. penis, the mouth and the vulva, or the Miranda, 348 F.3d 1322 (11th Cir. mouth and the anus,” § 2246(2)(B). 2003); United States v. Payne, 77 Fed. “Contact” is defined as “a union or Appx. 772 (6th Cir. 2003); United States junction of body surfaces: a touching or v. Bailey, 228 F.3d 637 (6th Cir. 2000). meeting,” Webster’s Third New We do not accept the analysis of those International Dictionary 490 (1st ed. courts as they pertain to the evidence and 1966), and “the act or state of touching; a violation in this case, particularly as touching or meeting of two things,” The those cases were decided in the context Random House College Dictionary 289 of internet “chat room” crimes. We (rev. ed. 1980). express no opinion here as to what our interpretation of “sexual act” would be if Those definitions, and the use of we were confronted with a challenge to a the term “contact” in the relevant sentence rendered after an internet “chat sections of the statute to which we have room” conviction pursuant to 18 U.S.C. just referred, are plain and explicit: they § 2224(b).
-13- touching and which led to the sentencing very least is compelling evidence from of Hayward for committing sexual abuse, which a fact-finder could only infer that the controlling term of 18 U.S.C. § he was clothed at that time. 2246(3) is “sexual contact,” where the touching could occur either directly or As we review the record, the facts through the clothing. Section 2246(3) recited by V-14 support only a sentence refers explicitly to “the intentional for abusive sexual contact under touching, either directly or through the U.S.S.G. § 2A3.4. Not surprisingly, this clothing,” of the victim. 18 U.S.C. was also the Guideline originally § 2246(3) (emphasis added). In this suggested by the Probation Office for case, therefore, where the evidence is sentencing as to V-14. These facts that V-14's mouth could not have touched Hayward’s penis because Hayward’s trousers were between her beds and [I] rolled in mouth and his penis – he could only have between the beds. . . . And been sentenced to sexual contact, and not he took one arm and he sexual abuse. scooped me back up onto the bed. . . . Then he told The record here discloses no [V-18] to go get the dresser evidence that Hayward’s penis was and move it beside the bed exposed when he pushed V-14's head so that the beds wouldn’t be down. V-14's testimony is clear – at the able to be pushed out. And time the “pushing” occurred, Hayward she got up and started was trousered. It was not until some moving the dresser and he time later that Hayward’s trousers were told her to get back on the removed. This evidence, and the record bed, and she got back on the as a whole, does not show that bed and I looked at her and Hayward’s act in pushing V-14's head her shirt was off. And then toward his clothed penis constituted an he took mine and [V-18]’s attempt to achieve direct skin-to-skin wrists again and this time contact. V-14's trial testimony is his pants were off. And he reproduced in the margin,14 and at the put them on his penis and started moving up and down. And he took my 14 V-14 testified as follows: shoulder and started moving [Hayward] took the back of it up and down, pushing up my head and started pushing and down. Then he said my head toward his penis. faster, faster, faster. Then And I kicked the bed out he ejaculated and appeared because they were rolling to fall asleep. . . .
-14- satisfy the definition of sexual contact (“MVRA”), 18 U.S.C. § 3663A, any under 18 U.S.C. § 2246(3), thereby person directly and proximately harmed requiring us to remand to the District is entitled to restitution, and a parent may Court for re-sentencing under U.S.S.G. assume a child’s restitution rights. In § 2A3.4.15 addition, the Government argues, parents 2. are entitled under the MVRA to restitution for costs incurred during the Hayward’s other challenge to his investigation and prosecution of the sentence is his claim that the District action. Id. at § 3663A(b)(4). Court improperly considered the cheerleaders’ parents to be victims for The District Court correctly restitution purposes. Whether a parent is concluded that the cheerleaders’ parents entitled to restitution is a question of law are entitled to restitution under the subject to plenary review. United States MVRA. They incurred reasonable costs v. Akande, 200 F.3d 136, 138 (3d Cir. in obtaining the return of their 1999). victimized children from London and in making their children available to Hayward argues that the parents participate in the investigation and trial. of the cheerleaders should not be The restitution order will therefore be considered victims for restitution affirmed. purposes. He urges that beyond the cost of counseling for their children, all other IV. costs incurred by them should be excluded from the restitution order. The In all respects other than the Government counters that under the District Court’s 15-year sentence of Mandatory Victims Restitution Act Hayward, which was rendered in error pursuant to 18 U.S.C. § 2423(a) and U.S.S.G. § 2A3.1, we will affirm the 15 judgment of conviction and the sentence The Government points out that of restitution. With respect to the 15- the Probation Office later amended its year sentence of Hayward, we will recommendations based upon its original reverse and remand for re-sentencing misapprehension of the age of the female pursuant to the sexual contact provisions whose head Hayward pushed down of 18 U.S.C. § 2423(a) and U.S.S.G. § towards his clothed penis. We do not 2A3.4. find this significant, as the age of the victim is not a factor in determining Fuentes, Circuit Judge, concurring in whether a defendant committed a sexual part, dissenting in part: assault or sexual contact. Moreover, at oral argument the Government I join the majority with respect to abandoned this argument.
-15- Part I, II, III(2) and IV. However, the or not is of no consequence.18 I believe majority has determined that Scott that under a plain reading of 18 U.S.C. § Hayward’s 15-year sentence for sexual 2246(2)(A) and (B), a person can commit abuse, specifically attempted oral sex an attempted sexual abuse not only with a minor, was rendered in error, and where there has been no physical contact that Hayward must be resentenced under of any kind, but, as determined by a the more lenient sexual contact guideline. number of our sister circuits, even where The difference will be a reduction of the person never meets the intended about 13 years and 23 levels.16 The victim. I disagree that the District Court majority’s view is, essentially, that applied the wrong guideline and Hayward could not have attempted therefore I respectfully dissent in regard sexual abuse because 18 U.S.C. § to Part III(1). 2243(a) and U.S.S.G § 2A3.1 require actual contact, skin-to-skin, and since Before discussing the statutory Hayward had his pants on when he language, I think it is important to review pushed Julie's 17 head toward his penis, he the factual record. The sexual act here could not have attempted oral sex. In my was no chance encounter. Hayward was view, whether Hayward had his pants on convicted, by a jury and after an exhaustive trial, of transporting Julie and Kelly in interstate and foreign commerce with the intent to engage in illicit sexual 16 activity, in violation of 18 U.S.C. § Under U.S.S.G. § 2A3.1, Hayward’s base offense level was 27. His final adjusted offense level of 37 18 produces a sentencing range of 235 to The girls’ testimony is not clear 293 months. Because that range exceeds or consistent on this point. There is the statutory maximum of 15 years, he some testimony in the record from which was sentenced by the District Court to 15 it may be inferred that his pants were in years imprisonment and a 3-year term of fact off. In testimony the court found supervised release. Upon remand, fully credible, Tracy stated: Hayward will be sentenced under He undid his own pants and U.S.S.G § 2A3.4, with a base offense pulled out his penis. At that level of 10. His final adjusted offense point I know Julie fell off the level of 14, produces a guideline range bed at one point, I am not sure of 18 to 24 months. whereabouts that was, and he pulled her back up onto the 17 I refer to the minor victims, bed...and at one point I know identified as V-15 and V-18 in the he tried to push Julie’s head majority opinion, by their first names, as down to his penis to give him is done in the parties’ briefs. oral sex. She pulled away.
-16- 2423(a). The evidence made clear that “humping her.” Several girls testified Hayward cultivated a sexualized that Hayward touched and caressed them relationship with the cheerleaders under throughout the trip, and on more than one his tutelage and intended all along to be occasion would take a girl’s hand, shove alone with the minors while in London. it into his pocket and “say something He coined sexually explicit nicknames like, oh, you’re feeling my thing.” On for some of the girls, such as “Doggie the night in question, Hayward Style” and “Penis” and made a practice encouraged Julie to wear make-up and a of discussing sex with them. One revealing outfit and to keep her braces cheerleader testified, for example, that he covered to disguise her age, so that she recounted stories of how female could join the group for their second cheerleaders often had sex with male night of drinking at a nightclub. recruits in order to curry favor with them. Although parent chaperones were often That night, in bed with three of present on team trips, Hayward the girls, Hayward removed Kelly’s shirt dissuaded parents from accompanying and fondled her, grabbed Julie's head them to London, assuring them that his and, “slamm[ing] [her] face into him,” wife and another coach, Larry Guerrero, forced her to kiss him. He then grabbed would provide sufficient supervision. He Tracy's hand, put it on his leg and tried to did not tell the parents that Guerrero and force her to undo his pants. He grabbed Mrs. Hayward would only be joining the the girls’ hands and made them rub his group later. Once in London, the sexual genitals and then grabbed the back of innuendo became explicit. Hayward Tracy's neck and “slammed her face into spent several late nights in the girls’ his, forcing her to kiss him.” Julie rooms, playing drinking games, testified that at this point Hayward “took confiding in the girls about his sexual the back of my head again and started experiences and proclivities and pushing my head down toward his penis. inquiring into theirs. One game required And I kicked the bed out because they the girls to “talk about what you’ve done, were rolling beds and rolled down in what you haven’t done with someone, between the beds...absolutely terrified.” sexual positions, what you prefer,” and She explained: “I thought that maybe I Hayward told the girls his daughter had would be able to get out, and I was been conceived on top of an holding onto the bed and I just said don’t entertainment center in a hotel room. touch me, just leave me here.” After Hayward staged and judged an “abs and Hayward lifted her back onto the bed, butt contest” between two of the girls, Julie fell away a second time, and touching both girls’ abs and butts to Hayward lifted her up again. Julie determine whose were tighter. testified that she could not remember According to testimony, he rewarded the how many times during this period winner by tossing her on the bed and Hayward pushed her head toward his
-17- penis. Finally, Hayward grabbed Tracy's attempted sexual act. The law of attempt and Julie's wrists, masturbating himself is well-settled. An attempt is comprised with their hands, saying “faster, faster, of two principal elements: (1) an intent to faster” until he ejaculated on them and engage in criminal conduct and (2) a appeared to fall asleep. substantial step toward the commission of the substantive offense which At trial, the jury heard the corroborates that intent. See United testimony of Kenneth Lanning, who States v. Cruz-Jimenez, 977 F.2d 95, described how acquaintance child 101-02 (3d Cir. 1992). A “substantial molesters develop seduction strategies step” has been defined as something suited to their victims, gradually more than mere preparation and less than lowering their victims’ inhibitions about the last act necessary before commission. sex so as to solicit their complicity in U.S. v. Ledesma-Cuesta, 347 F.3d 527, their own victimization. Hayward’s plan 531 (3rd Cir. 2003), citing United States for abusing his young victims was v. Yousef, 327 F.3d 56, 134 (2d Cir. hatched long before his conduct in the 2003), accord United States v. Manley, bedroom and that conduct should 632 F.2d 978, 987 (2d Cir. 1980). It therefore not be viewed in isolation. requires “some appreciable fragment of the crime in progress.” United States v. My colleagues emphasize that Hadley, 918 F.2d 848, 853 (9th Cir. “sexual act” as defined in § 2246 1990) (internal quotations and citations requires “contact between the mouth and omitted). the penis” and therefore there has to be “actual touching, a meeting of body Hayward’s conduct here surfaces.” Thus, the majority concludes unquestionably satisfies that definition. that the act of pushing Julie’s head Hayward was engaging in “mere toward his “clothed” penis is not a preparation” when he took the girls to substantial step taken towards London on an unchaperoned trip, brought commission of a sexual act. The them to a nightclub where they became majority’s repeated emphasis on intoxicated, talked to them in Hayward’s state of undress is misplaced increasingly explicit terms about sex and and misleading. I agree with my climbed into bed with them. Had he colleagues that a “sexual act” can only be then just kissed and fondled the girls, accomplished by direct skin-to-skin undressed, and forced them to touch him, contact and therefore clearly requires those acts alone would not have exposed skin. However, it has never established his desire to have Julie been alleged that Hayward successfully perform oral sex on him. However, the perpetrated a “sexual act” on his young District Court found, in an exhaustive, victim. Rather, the District Court fifty-page sentencing memorandum, that sentenced him under § 2A3.1 for an Hayward went beyond that “preparation”
-18- and took a substantial step toward oral The relevant cases from our sister sex, making his desires plain, when, after circuits clearly dictate the application of trying to force Tracy to undress him, he the sexual abuse guideline in this case. grabbed Julie's head and pushed it down In some of these cases, the sexual abuse toward his penis. When Hayward’s guideline applied even when the victim attempts were met with Julie's resistance, and her would-be abuser never met. In he persisted, ignoring her protestations, United States v. Payne, the Sixth Circuit dragging her back onto the bed by one held that the mere act of arriving for an arm and pushing her head down again. arranged meeting with a 14-year-old girl Thwarted, Hayward resigned himself to constituted a “substantial step” sufficient sexual gratification by other means. to find an attempted sexual act when the defendant had been engaging in explicit My colleagues’ view, that e-mail conversations with his future Hayward’s pushing Julie's head toward victim, and sentenced the defendant his penis did not constitute a substantial under U.S.S.G. § 2A3.1.19 77 Fed. Appx. step toward achieving “contact between 772, (6th Cir. 2003). In United States v. the mouth and the penis” is untenable. Miranda, after an explicit online chat Even assuming he was still dressed at with “claudia13x” in which having sex this point, the only thing standing in the was discussed and a meeting time and way of successful completion of a sexual place was established, Miranda was act was a layer of fabric; the only step arrested when he stopped his car in front remaining was for Hayward to unzip his of claudia13x’s school and asked an fly with his free hand, or coax Tracy or undercover agent the name of the school. Julie to do it for him, as he had tried to The Eleventh Circuit reversed with earlier in the encounter. Hayward did instructions to apply the sexual abuse, not commit this last act necessary to rather than the sexual contact, guideline complete the offense, perhaps because because it was clear from the evidence his use of force was met with Julie's that Miranda intended to engage in a resistance. Of course, if he had sexual act with the minor. 348 F.3d succeeded, he would have committed 1322, 1326-29 (11th Cir. 2003). See sexual abuse, not attempted it. In my view, the majority essentially writes attempt out of the statute, requiring not 19 Although it is not relevant to the only a substantial step towards the holding of either case, it is worth noting commission of the offense, but that the “victims” in Payne, Miranda and practically all the steps necessary. In Panfil were entirely fictional. The other words, the majority requires that defendants were actually communicating the path be clear of obstacles, and that with FBI agents posing as young girls, skin-to-skin contact be imminent and and their meetings were with undercover certain. agents.
-19- also, United States v. Panfil, 338 F.3d contact or are not even in the same room, 1299 (11th Cir. 2003) (upholding a as the Sixth, Ninth, Tenth and Eleventh sentence under U.S.S.G. 2A3.1 for a Circuits have determined, it is clear that defendant who was arrested when he whether Hayward had his pants on or off went to meet his intended victim whom is of no moment. The proper focus he had met on the internet). should be on the aggressor’s intent, not on how close, temporally or spatially, the In United States v. Cryar, the aggressor comes to achieving skin-to- Tenth Circuit upheld Cryar’s conviction skin, mouth to penis contact. In other and sentencing under U.S.S.G. §2A3.1 words, we should focus on criminal when, after discussing his attraction to design, not possibility of performance. young girls with a business associate and Here, Hayward’s intent was clear. He expressing a desire to babysit that wanted to have Julie perform oral sex on associate’s six-year-old sister-in-law, him, and, in pushing her head toward his Cryar arrived at the Oklahoma zoo to penis, he committed a substantial step in pick up the young girl. 232 F.3d 1318 furtherance of that criminal design. (10th Cir. 2000). See also United States Cruz-Jimenez, 977 F.2d at 102. The v. Butler 92 F.3d 960 (9th Cir. 1996) majority’s implication that Hayward’s (applying guideline for attempted sexual intent could not be inferred from his abuse when defendant was arrested actions because he was “trousered” is entering the room where he believed unsupportable. In the course of a children with whom he wanted to have premeditated and carefully orchestrated sex were waiting); United States v. sexual encounter with three young girls Hadley, 918 F.2d 848 (9th Cir. 1990) in his care, with sexual desire evident (holding there was sufficient evidence to and the ultimate goal of sexual support a finding of attempted sexual gratification clearly in mind, Hayward abuse where defendant and victim forcefully pushed Julie's head toward his remained clothed, because evidence penis. It is certainly reasonable to infer, made clear that defendant intended to as Tracy did, that Hayward intended for engage in a sexual act with the victim.) Julie “to give him oral sex” and that he would have completed the attempt by These cases make it clear that a unzipping his pants, had Julie not kicked defendant may be guilty of attempt even and pulled away. To me, Hayward’s where significant steps necessary to carry conduct clearly constitutes attempted out the substantive crime intended are sexual abuse. not completed. See also United States v. Jackson, 560 F.2d 112, 120 (2d After engaging in a lengthy Cir.1977). If an attempted sexual abuse sentencing process, hearing the girls’ can be perpetrated when defendant and testimony at sentencing, meticulously victim are not about to have skin-to-skin reviewing the facts with a clear
-20- understanding of the guideline requirements, and giving due consideration to Hayward’s protestations that his pants were still on, the District Court found that “the evidence nonetheless establishes by clear and convincing evidence that, in starting to push Julie's head toward his penis, Hayward was attempting to have her perform oral sex on him.” Accepting that court’s factual findings, as we must, I believe that the District Court correctly found that the record supports a sentence for attempted criminal sexual abuse under U.S.S.G. § 2A3.1.
For these reasons I would affirm the District Court’s decision in its entirety.
-21-