                                                                                                                           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Precedential or Non-Precedential: Precedential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


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                        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-
