UNITED STATES of America v. Scott HAYWARD, Appellant.
No. 02-4540.
United States Court of Appeals, Third Circuit.
Argued Dec. 11, 2003. Filed March 5, 2004.
359 F.3d 631
We have considered all of plaintiffs’ claims and find them meritless. We therefore AFFIRM the judgment of the district court.
Mary Beth Buchanan, Kelly R. Labby (Argued), Bonnie R. Schlueter, Office of the United States Attorney, Pittsburgh, for Appellee, United States of America.
Before AMBRO, FUENTES, and GARTH, Circuit Judges.
OPINION
GARTH, Circuit Judge.
Scott Hayward (“Hayward“) appeals from the District Court‘s judgment and sentence. Judgment was entered against Hayward after a jury convicted him of
I.
At the time the facts giving rise to this case occurred, Hayward and his wife owned the Pennsylvania Cheerleading Center (“PCC“), a competitive cheerleading school located outside of Pittsburgh, Pennsylvania. PCC conducted after-school and weekend classes in cheerleading, tumbling and acrobatics, and prepared its students for team cheerleading competitions. Hayward worked at PCC as a cheerleading coach.
In January 2000, PCC and other teams were invited to take part in the World Cheerleading Association‘s “World Tour of Champions” to be held on April 8-17, 2000, which involved a tour of Europe and a national competition. V-14, V-15 and V-18,1 along with three other cheerleaders aged 16 and 17, went on the tour with Hayward.
Prior to the trip, Hayward held a meeting for the participating cheerleaders’ parents, at which he stated that he and his wife, Mary Hayward, and a PCC coach named Larry Guerrero would serve as chaperones for the trip. Hayward also distributed an itinerary supplied by the World Cheerleading Association and detailed the rules for the trip, which included prohibitions on smoking, drinking, drug use and contact with boys. Immediately after the parents’ meeting, Hayward met with the six girls attending the tour and told them that the itinerary was “just for show” and that they would “have fun” on the trip. He told the cheerleaders they would be allowed to drink alcohol on the trip. He also said that “whatever happened in London would stay in London.” Hayward testified at trial that he did so because the girls were upset after reading the strict itinerary and were threatening not to attend the tour.
Upon arriving at the airport, the girls and their parents were informed that Mary Hayward and Larry Guerrero were not leaving with the group, but would join them a few days later. When the cheerleaders left for England, Scott Hayward was the only chaperone.
At the hotel in London, the girls slept three to a room—V-14, V-16 and V-18 shared one room, and the other three girls shared an adjoining room. On the night of April 12, 2000, Hayward took the girls to a nightclub in London where they drank alcohol. The group returned to the hotel room in which the 16-year olds and the 17-year-old were staying.2 Hayward began to rub the back of one of the girls, slipping his hand inside her pants. Hayward stated to another girl: “Babe, I‘m sleeping with you tonight.” He then appeared to doze off. Both of the 16-year-olds and the 17-year old also fell asleep, at which point Hayward awoke and announced that he was going to sleep in the adjoining room shared by V-14, V-16 and V-18.
Once inside the adjoining room, Hayward directed V-14, V-15 and V-18 to
The precise order of events thereafter is unclear. Initially, Hayward pulled down V-15‘s shirt and fondled her breasts. V-15 testified: “He began to untie my shirt. It tied back here. It was just two strings. And he rolled me over, pulled my shirt down, and fondled me.”
While he was fondling V-15, Hayward pulled V-14‘s face toward his and forced her to kiss him. The significant testimony concerning the sequence of events that took place that evening was V-14‘s. She testified that Hayward pushed her head toward his penis. Some time later, he removed his trousers and placed V-14‘s and V-18‘s hands on his penis.
The three girls then went to the hotel lobby, and later returned to their room once Hayward had vacated it. The following day, V-14 reported the incident to a cheerleading judge affiliated with the World Cheerleading Association, who, in turn, alerted Scotland Yard.
Scotland Yard investigators took videotaped statements from V-14, V-15 and V-18, and performed tests on semen samples found on the clothing worn by V-14 and V-18 on the night in question. Hayward was questioned by Scotland Yard, and gave two recorded statements. Hayward also gave blood samples to investigators two days after the assaults occurred. The toxicology report evidenced no drugs or alcohol in his blood, although due to the lapse of time it was inconclusive as to Hayward‘s impairment at the time these events took place. DNA testing established that there was only one chance in a billion that a semen sample taken from the girls’ clothing was not Hayward‘s semen.
When Hayward returned to the United States, he was charged and indicted in a two-count indictment by a grand jury in the Western District of Pennsylvania. Count One charged Hayward with transporting two females under age 18 in interstate and foreign commerce with the intent to engage in illegal sexual activity, in violation of
The jury convicted Hayward of Count One, finding that he had violated
Hayward makes six claims on appeal: (1) the District Court improperly allowed expert testimony from behavioral scientist Kenneth Lanning pertaining to the general profile of an acquaintance molester; (2) the District Court at trial improperly allowed the prosecution to play Hayward‘s tape recorded statements to Scotland Yard investigators; (3) the District Court should have instructed the jury that criminal sexual activity had to be “the dominant“—rather than “a significant or motivating“—purpose of Hayward‘s trip to England; (4) Hayward should have been sentenced for criminal sexual contact under
As to Hаyward‘s first, second and third claims, we find no error in the admission of the expert testimony and the tape recordings at trial or in the jury charge. We agree with Hayward on his fourth claim, and will reverse and remand the case for re-sentencing for criminal sexual contact pursuant to
We have jurisdiction to hear this appeal pursuant to
II.
We briefly address Hayward‘s arguments that the District Court erred at trial in admitting certain evidence and in charging the jury. We hold his arguments to be meritless.
1.
The first of these claims is that the District Court improperly allowed expert testimony adduced from behavioral scientist Kenneth Lanning (“Lanning“) pertaining to the general profile of an acquaintance molester. The District Court Judge,
After testifying as to his experience and credentials, Lanning was qualified by the District Court Judge as an expert in the field of behavioral science.7 Lanning then testified about various types of child molesters, focusing primarily on “acquaintance” child molesters. Lanning described the patterns exhibited by many acquaintance child molesters, including selection of victims from dysfunctional homes, formulation of a customized seduction process, lowering the victim‘s inhibitions about sex, isolating the victim, and soliciting the victim‘s cooperation in the victimization process.
Hayward argues that Lanning‘s testimony violated Rule 704(b) of the Federal Rules of Evidence, which prohibits expert witnesses from testifying with respect to the mental state of a defendant in a criminal case and from stating an opinion or inference as to whether thе defendant had the mental state constituting an element of the crime charged. Hayward contends that Lanning‘s testimony effectively removed the determination of Hayward‘s intent from the jury, in violation of Rule 704(b).
We have held that under Rule 704(b) “expert testimony is admissible if it merely supports an inference or conclusion that the defendant did or did not have the requisite mens rea, so long as the expert does not draw the ultimate inference or conclusion for the jury and the ultimate inference or conclusion does not necessarily follow from the testimony.” United States v. Bennett, 161 F.3d 171, 183 (3d Cir.1998) (quoting United States v. Morales, 108 F.3d 1031, 1038 (9th Cir.1997)) (internal quotations omitted).
Furthermore, in a Seventh Circuit case, in which Lanning qualified as an expert and in which he testified under circumstances similar to those in this case, Lanning‘s testimony was admitted and upheld against a Rule 704(b) attack identical to Hayward‘s attack here. See United States v. Romero, 189 F.3d 576 (7th Cir.1999). In Romero, Lanning was only permitted to testify to “the methods and techniques employed by preferential сhild molesters. The prosecution would not ask Lanning to give his opinion about Romero or to comment about his intent or culpability.” Id. at 582. On redirect examination, however, the
prosecution posed a series of hypothetical actions to Lanning and asked him if these actions would indicate someone who would act on his sexual fantasies about children ... [T]he hypotheticals described actions taken by Romero that had already been produced in evidence[.]
Id. at 584. The Seventh Circuit held that Lanning‘s responses did not violate Rule 704(b) because “[h]is testimony did not amount to a statement of his belief about what specifically was going through Rome-
In this case, Lanning‘s testimony elucidated the motives and practices of an acquaintance molester. His testimony was admissible under Rule 704(b) because, as in Romero, Lanning “never directly opined as to [Hayward‘s] mental state when he [returned to the hotel room with the cheerleaders].” Id. at 586. Rаther, Lanning “focused primarily on the modus operandi—on the actions normally taken by child molesters to find and seduce their victims.” Id. He drew no conclusion as to Hayward‘s intent. Thus, his testimony is admissible under Rule 704(b).
We review a district court‘s decision to admit or exclude expert testimony for abuse of discretion. United States v. Watson, 260 F.3d 301, 306 (3d Cir.2001); Bennett, 161 F.3d at 182. The District Court properly exercised its discretion in admitting Lanning‘s testimony.
2.
Hayward next argues that the tape recorded statements of Scotland Yard investigators questioning Hayward were improperly admitted and played for the jury, because they violated Federal Rule of Evidence 408.8 Hayward claims on appeal that the tapes, which contained Hayward‘s statements to Scotland Yard investigators, were prejudicial under Rule 403 because they allowed the investigators to testify without taking the stand or being subject to cross-examination. However, the record reveals that the Scоtland Yard detectives who questioned Hayward on the tape were present in court and even testified on behalf of the Government at Hayward‘s trial.
The contents of the tapes were clearly probative of the facts surrounding the crime charged. Hayward‘s taped statements revealed his whereabouts on the night of April 12, 2000, his reason for being in London with the cheerleaders, and his custody of and control over the cheerleaders during the trip. The tapes contain no evidence as to Hayward‘s criminal sexual intent, as he maintained during the questioning that he had no memory of the event. The District Court did not abuse its discretion in admitting the tapes into evidence.
3.
Next, Hayward argues on appeal that the District Court should have instructed the jury that criminal sexual activity had to be “the dominant“—rather than “a significant or motivating“—purpose of the trip to England in order to convict Haywаrd. The District Court charged the jury:
It is not necessary for the government to prove that the illegal sexual activity was the sole purpose for the transportation. A person may have several different purposes or motives for such travel, and such may prompt in varying degrees the act of making the journey. The government must prove beyond a reasonable doubt, however, that a significant or motivating purpose of the travel across state or foreign boundaries was to have the individual transported engage in illegal sexual activity. In other words, the illegal sexual activity must have not been merely incidental to the trip.
At trial, Hayward argued that the jury should be instructed to find that the criminal sexual activity with which Hayward was charged was “a dominant purpose” of his trip to England. The District Court Judge instead charged the jury that the criminal sexual activity had to be “a significant or motivating purposе” of Hayward‘s trip to England. On appeal, Hayward‘s argument has changed. He now argues that the District Court Judge should have used the words “the dominant purpose” in the jury charge. Hence, the charge that Hayward argues for on appeal is substantially different from the charge that Hayward requested at trial, raising a serious question as to whether this issue has been preserved. We do not rest our position on preservation, however.
Hayward points to no case in which any Court of Appeals required a jury instruction that criminal sexual activity must be the dominant purpose of interstate travel to support a conviction under
In Vang, the defendants repeatedly raped underage girls during the course of an interstate car trip, and they were charged under the Mann Act and
III.
We now turn to Hayward‘s arguments concerning his criminal sentence.
1.
First, Hayward argues that the District Court Judge improperly sentenced him for attempted criminal sexual abuse of V-14 under
Hayward was convicted of violating
In selecting the sentencing guideline, the District Court Judge examined
Section 2A3.1 applies when a defendant engages in or attempts to engage in criminal sexual abuse, which is defined as “knowingly engag[ing] in a sexual act with another person who (1) has attained the age of 12 years but has not attained the age of 16 years; and (2) is at least four years younger than the person so engaging.”
(A) contact between the penis and the vulva or the penis and the anus, and for purposes of this subparagraph contact involving the penis occurs upon penetration, however slight;
(B) contact between the mouth and the penis, the mouth and the vulva, or the mouth and the anus;
(C) the penetration, however slight, of the anal or genital opening of another by a hand or finger or by any object, with an intent to abuse, humiliate, harass, degrade, or arouse or gratify the sexual desire of any person; or
(D) the intentional touching, not through the clothing, of the genitalia of another pеrson who has not attained the age of 16 years with an intent to abuse, humiliate, harass, degrade, or arouse or gratify the sexual desire of any person[.]
Section 2A3.4 applies when a defendant engages in or attempts to engage in abu-
The District Court Judge explored the distinction between
The Presentence Investigation Report (“PSIR“) recommended that Hayward be sentenced as to both V-14 and V-15 under
Although the Court agrees that it may be inferred from V-14‘s testimony that defendant‘s pants were still on when he tried to push her head toward his penis, the evidence nonetheless establishes by clear and convincing evidenсe that the defendant, in starting to push V-14‘s head toward his penis, was attempting to have her perform oral sex on him.
App. Vol. I p. 23.
Hayward correctly points out that the District Court Judge did not define what constitutes an attempt to commit a sexual act. The ambiguous and equivocal act of pushing a victim‘s head toward one‘s clothed penis does not meet any definition of a “sexual act” as defined in
The term “contact” is the controlling term set forth in
The record here discloses no evidence that Hayward‘s penis was exposed when he pushed V-14‘s head down. V-14‘s testimony is clear—at the time the “pushing” occurred, Hayward was trousered. It was not until some time later that Hayward‘s trousers were removed. This evidence, and the record as a whole, does not show that Hayward‘s act in pushing V-14‘s head toward his clothed penis constituted an attempt to achieve direct skin-to-skin contact. V-14‘s trial testimony is reproduced in the margin,14 and at the very least is compelling evidence from which a factfinder could only infer that he was clothed at that time.
As we review the record, the facts recited by V-14 support only a sentence for abusive sexual contact under
2.
Hayward‘s other challenge to his sentence is his claim that the District Court improperly considered the cheerleaders’ parents to be victims for restitution purposes. Whether a parent is entitled to restitution is a question of law subject to plenary review. United States v. Akande, 200 F.3d 136, 138 (3d Cir.1999).
Hayward argues that the parents of the cheerleaders should not be considered victims for restitution purposes. He urges that beyond the cost of counseling for their children, all other costs incurred by them should be excluded from the restitution order. The Government counters that under the Mandatory Victims Restitution Act (“MVRA“),
The District Court correctly concluded that the cheerleaders’ parents are entitled to restitution under the MVRA. They incurred reasonable costs in obtain-ing the return of their victimized children from London and in making their children available to participate in the investigation and trial. The restitution order will therefore be affirmed.
IV.
In all respects other than the District Court‘s 15-year sentence of Hayward, which was rendered in error pursuant to
FUENTES, Circuit Judge, concurring in part, dissenting in part.
I join the majority with respect to Part I, II, III(2) and IV. However, the majority has determined that Scott Hayward‘s 15-year sentence for sexual abuse, specifically attempted oral sex with a minor, was rendered in error, and that Hayward must be resentenced under the more lenient sexual contact guideline. The difference will be a reduction of about 13 years and 23 levels.16 The majority‘s view is, essentially, that Hayward could not have attempted sexual abuse because
Before discussing the statutory language, I think it is important to review the factual record. The sexual act were has no chance encounter. Hayward was 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 activity, in violation of
That night, in bed with three of the girls, Hayward removed Kelly‘s shirt and fondled her, grabbed Julie‘s head and, “slamm[ing her] face into him,” forced her
At trial, the jury heard the testimony of Kenneth Lanning, who described how acquaintance child molesters develop seduction strategies suited to their victims, gradually lowering their victims’ inhibitions about sex so as to solicit their complicity in their own victimization. Hayward‘s plan for abusing his young victims was hatched long before his conduct in the bedroom and that conduct should therefore not be viewed in isolation.
My colleagues emphasize that “sexual act” as defined in
Hayward‘s conduct here unquestionably satisfies that definition. Hayward was engaging in “mere preparation” when he took the girls to London on an unchaperoned trip, brought them to a nightclub where they became intoxicated, talked to them in increasingly explicit terms about sex and climbed into bed with them. Had he then just kissed and fondled the girls, undressed, and forced them to touch him, those acts alone would not have established his desire to have Julie perform oral sex on him. However, the District Court found, in an exhaustive, fifty-page sentencing memorandum, that Hayward went beyond that “preparation” and took a sub-
My colleagues’ view, that Hayward‘s pushing Julie‘s head toward his penis did not constitute a substantial step toward achieving “contact between the mouth and the penis” is untenable. Even assuming he was still dressed at this point, the only thing standing in the way of successful cоmpletion of a sexual act was a layer of fabric; the only step remaining was for Hayward to unzip his fly with his free hand, or coax Tracy or Julie to do it for him, as he had tried to earlier in the encounter. Hayward did not commit this last act necessary to complete the offense, perhaps because his use of force was met with Julie‘s resistance. Of course, if he had succeeded, he would have committed sexual abuse, not attempted it. In my view, the majority essentially writes attempt out of the statute, requiring not only a substantial step towards the commission of the offense, but practically all the steps necessary. In other words, the majority requires that the path be clear of obstacles, and that skin-to-skin contact be imminent and certain.
The relevant cases from our sister circuits clearly dictate the application of the sexual abuse guideline in this casе. In some of these cases, the sexual abuse guideline applied even when the victim and her would-be abuser never met. In United States v. Payne, the Sixth Circuit held that the mere act of arriving for an arranged meeting with a 14-year-old girl constituted a “substantial step” sufficient to find an attempted sexual act when the defendant had been engaging in explicit email conversations with his future victim, and sentenced the defendant under
In United States v. Cryar, the Tenth Circuit upheld Cryar‘s conviction and sentencing under
These cases make clear that a defendant may be guilty of attempt even where significant steps necessary tо carry out the substantive crime intended are not completed. See also United States v. Jackson, 560 F.2d 112, 120 (2d Cir.1977). If an attempted sexual abuse can be perpetrated when defendant and victim are not about to have skin-to-skin contact or are not even in the same room, as the Sixth, Ninth, Tenth and Eleventh Circuits have determined, it is clear that whether Hayward had his pants on or off is of no moment. The proper focus should be on the aggressor‘s intent, not on how close, temporally or spatially, the aggressor comes to achieving skin-to-skin, mouth to penis contact. In other words, we should focus on criminal design, not possibility of performance. Here, Hayward‘s intent was clear. He wanted to have Julie perform oral sex on him, and, in pushing her head toward his penis, he committed a substantial step in furtherance of that criminal design. Cruz-Jiminez, 977 F.2d at 102. The majority‘s implication that Hayward‘s intent could not be inferred from his actions because he was “trousered” is unsupportable. In the course of a premeditated and carefully orchestrated sexual encounter with three young girls in his care, with sexual desire evident and the ultimate goal of sexual gratification clearly in mind, Hayward forcefully pushed Julie‘s head toward his penis. It is certainly reasonable to infer, as Tracy did, that Hayward intended for Julie “to give him oral sex” and that he would have completed the attempt by unzipping his pants, had Julie not kicked and pulled away. To me, Hayward‘s conduct clearly constitutes attempted sexual abuse.
After engaging in a lengthy sentencing process, hearing the girls’ testimony at sentencing, meticulously reviewing the facts with a clear 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 аnd 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
For these reasons I would affirm the District Court‘s decision in its entirety.
Charles Thomas LEWIS, Appellant
v.
Philip L. JOHNSON, Superintendent, SCI-Pittsburgh; Mike Fisher, Attorney General of Pennsylvania, Appellees.
No. 01-1036.
United States Court of Appeals, Third Circuit.
Argued June 26, 2003.
Decided March 10, 2004.
Notes
Transportation of minors
(a) Transportation with intent to engage in criminal sexual activity—A person who knowingly transports an individual who has not attained the age of 18 years in interstate or foreign commerce, or in any commonwealth, territory or possession of the United States, with intent that the individual engage in prostitution, or in any sexual activity for which any person can be charged with a criminal offense, or attempts to do so, shall be fined under this title, imprisoned not more than 15 years, or both.
(A) contact between the penis and the vulva or the penis and the anus, and for purposes of this subparagraph contact involving the penis occurs upon penetration, however, slight;
(B) contact between the mouth and the penis, the mouth and the vulva, or the mouth and the anus;
(C) the penetration, however slight, of the anal or genital opening of another by a hand or finger or by any object, with an intent to abuse, humiliate, harass, degrade, or arouse or gratify the sexual desire of any person; or
(D) the intentional touching, not through the clothing, of the genitalia of another person who has not attained the age of 16 years with an intent to abuse, humiliate, harass, degrade, or arouse or gratify the sexual desire of any person[.]
Whoever knowingly transports any individual in interstate or foreign commerce, or in any Territory or Possession of the United States, with intent that such individual engage in prostitution, or in any sexual activity for which any person can be charged with a criminal offense, or attempts to do so, shall be fined under this title or imprisoned not more than 10 years, or both.
* * *
(c) Cross References:
(1) If the offense involvеd causing, transporting, permitting, or offering or seeking by notice or advertisement, a person less than 18 years of age to engage in sexually explicit conduct for the purpose of producing a visual depiction of such conduct, apply
§ 2G2.1 ....(2) If the offense involved criminal sexual abuse, attempted criminal sexual abuse, or assault with intent to commit criminal sexual abuse, apply
§ 2A3.1 (Criminal Sexual Abuse; Attempt to Commit Criminal Sexual Abuse). If the offense involved criminal sexual abuse of a minor who had not attained the age of 12 years,§ 2A3.1 shall apply, regardless of the ‘consent’ of the victim.(3) If the offense did not involve promoting a commercial sex act, and neither subsection (c)(1) nor (c)(2) is applicable, apply
§ 2A3.2 (Criminal Sexual Abuse of a Minor Under the Age of Sixteen Years (Statutory Rape) or Attempt to Commit Such Acts) or§ 2A3.4 (Abusive Sexual Contact or Attempt to Commit Abusive Sexual Contact), as appropriate.
[Hayward] took the back of my head and started pushing my head toward his penis. And I kicked the bed out because they were rolling beds and [I] rolled in between the beds.... And he took one arm and he scooped me back up onto the bed.... Then he told [V-18] to go get the dresser and move it beside the bed so that the beds wouldn‘t be able to be pushed out. And she got up and started moving the dresser and he told her to get back on the bed, and she got back on the bed and I looked at her and her shirt was off. And then he took mine and [V-18]‘s wrists again and this time his pants were off. And he put them on his penis and started moving up and down. And he took my shoulder and started moving it up and down, pushing up and down. Then he said faster, faster, faster. Then he ejaculated and appeared to fall asleep ...