United States v. Kenneth Schneider

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

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Nos. 12-1145 and 13-1491

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UNITED STATES OF AMERICA

v.

KENNETH SCHNEIDER,

Appellant

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On Appeal from United States District Court

for the Eastern District of Pennsylvania

(E.D. Pa. No. 2-10-cr-00029-001)

District Judge: Honorable Juan R. Sanchez

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Argued January 20, 2015

Before: FISHER, JORDAN and GREENAWAY, JR., Circuit

Judges.

(Filed: September 9, 2015)

Howard J. Bashman, Esq. ARGUED

Suite G-22

2300 Computer Avenue

Willow Grove, PA 19090

Counsel for Appellant

Vineet Gauri, Esq.

Michelle Morgan, Esq. ARGUED

Daniel A. Velez, Esq.

Office of United States Attorney

615 Chestnut Street

Suite 1250

Philadelphia, PA 19106

Counsel for Appellee

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OPINION OF THE COURT

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FISHER, Circuit Judge.

These appeals concern the criminal conviction of

Kenneth Schneider on the charge of traveling in foreign

commerce with the intent to engage in sex with a minor

between the ages of twelve and sixteen, in violation of 18

U.S.C. § 2423(b) (2000). They pose questions involving pre-

and post-trial motions, evidentiary issues, and a sentencing

issue, each of which Schneider asserts was incorrectly

decided by the District Court. Because the District Court did

not err or abuse its discretion, we will affirm each of these

rulings.

2

I.

The victim in this case was born in Russia in 1986. At

age ten, he was sent to study ballet at the Bolshoi Academy in

Moscow, approximately three hours from his family’s house.

Within a year and a half, the victim’s parents owed the

Academy just under $500 for unpaid dormitory fees. Those

unpaid fees prevented him from continuing to attend the

Academy. In 1998, two of the victim’s ballet teachers

introduced Kenneth Schneider, an American lawyer who had

lived in Moscow for many years, to the victim and his family.

Schneider had previously been financially generous in

supporting artists in Russia. The teachers told Schneider

about the victim’s circumstances, and Schneider indicated

that he might be able to help.

One day that summer, Schneider and the instructors

went to the victim’s house for a ballet demonstration. During

the demonstration, one of the teachers commented to

Schneider that the victim was very talented. After subsequent

meetings, Schneider agreed to financially assist the victim’s

parents so that the victim could pursue further ballet studies at

the Academy. Schneider proposed to pay for the victim’s

studies and housing, and extended the victim’s father a loan

to pay the delinquent dormitory fees. Schneider, with the

victim’s parents’ permission, had the victim live at his

Moscow apartment, close to the Academy. The victim was

twelve years old when he began living with Schneider during

the week.

At some point, Schneider began engaging in sexual

activity with the victim. As of August 2000, Schneider and

the victim were engaging in oral sex on Schneider’s bed

approximately three times per week. Thereafter, Schneider

and the victim moved to a second apartment near the

Academy. At this point, Schneider and the victim were also

3

engaging in anal sex, with sexual activities occurring

approximately three to four times per week. Near this time, a

school nurse examined the victim. Schneider told the victim

that if the nurse asked questions about the condition of the

victim’s anus, the victim should tell her that he had been

using a solid stick of hemorrhoid medication. Schneider told

the victim that if anyone discovered their sexual activity,

Schneider would go to jail and the victim would not achieve

his goals of becoming a famous ballet dancer or going to

America. Around this time, Schneider showed the victim a

movie about a famous male ballet dancer and his older male

mentor and lover, and compared their relationship to the one

in the film.

In 2001, when the victim was fifteen, he, with

assistance from Schneider, applied to and was accepted into a

summer ballet program in Philadelphia. The victim’s parents

agreed to let him attend. The victim and Schneider traveled

together to Philadelphia, where the victim resided at

Schneider’s parents’ home while attending the program.

Schneider did not stay in Philadelphia the entire time, as he

was traveling for work. During this time in the United States,

Schneider and the victim held hands, hugged, and kissed on

the lips, but no oral or anal sex occurred. On August 22,

2001, Schneider and the victim returned together to Moscow.

Upon their return, the victim returned to living at

Schneider’s apartment, and Schneider and the victim resumed

engaging in oral and anal sex. When the victim was sixteen,

Schneider and the victim moved to Massachusetts, where the

victim attended school and danced professionally. In 2008,

the victim filed a civil complaint against Schneider and

members of Schneider’s family, among others, alleging that

Schneider had sexually abused the victim for years.

4

That civil suit was stayed in December 2009 when

Schneider was charged in a criminal complaint. In January

2010, a federal grand jury returned an indictment against

Schneider, charging him with traveling in foreign commerce

for the purpose of engaging in illicit sexual conduct with

another person, in violation of 18 U.S.C. § 2423(b) (2000),

and transporting an individual in foreign commerce with

intent that such individual engage in a sexual activity for

which any person can be charged with a criminal offense, in

violation of 18 U.S.C. § 2421 (2000). These charges related

to the victim and Schneider’s travel from Philadelphia to

Moscow on August 22, 2001. On March 27, 2010, Schneider

was arrested in Cyprus. After two days in custody, he was

released on bail, and subsequently returned to custody just

under two months later, on May 17, 2010. On May 28, 2010,

Schneider was brought to the Federal Detention Center in

Philadelphia, remaining there through his trial.

The trial commenced on September 21, 2010. On

October 1, 2010, a jury found Schneider guilty on both

counts. Schneider subsequently moved for a judgment of

acquittal, which the District Court granted as to the § 2421

count, but not the § 2423(b) count. Schneider was sentenced

on December 1, 2011, to the statutory maximum fifteen

years’ incarceration, in addition to three years’ supervised

release, a $20,000 fine, and $35,000 in restitution. Schneider

timely appealed. On August 12, 2012, Schneider filed a

timely motion for a new trial based on newly-discovered

evidence. The District Court denied this motion on February

15, 2013, and Schneider timely appealed. Those appeals have

been consolidated before us.

5

II.

The District Court had jurisdiction pursuant to 18

U.S.C. § 3231. This Court has jurisdiction pursuant to 18

U.S.C. § 3742(a) and 28 U.S.C. § 1291.

III.

Schneider raises six issues on appeal. First, did the

District Court err when it denied Schneider’s motion for a

judgment of acquittal for his conviction under 18 U.S.C.

§ 2423(b)? Second, did the District Court err when it denied

Schneider’s motion to dismiss the indictment as barred by the

statute of limitations? Third, did the District Court abuse its

discretion in ruling evidence of Schneider’s pretrial

incarceration inadmissible? Fourth, did the District Court

abuse its discretion in admitting excerpts of and testimony

regarding a film into evidence? Fifth, did the District Court

abuse its discretion when it did not grant a motion for a new

trial based on newly-discovered evidence? Finally, did the

District Court err when it invoked a Sentencing Guidelines

cross-reference to calculate Schneider’s final offense level?

We consider each issue in turn.

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A.

Schneider, in a post-trial motion, sought a judgment of

acquittal on both counts. App. at 18. The District Court

granted this motion in part, writing that the “innocent round

trip” exception established in Mortensen v. United States, 322

U.S. 369 (1944), a prosecution under the Mann Act, ch. 395,

36 Stat. 825 (1910) (codified as amended at 18 U.S.C. §§

2421-2424 (2012)), applied to the 18 U.S.C. § 2421

conviction. It went on to deny Schneider a judgment of

acquittal in connection with his conviction under 18 U.S.C. §

2423(b), stating that the Mortensen exception did not apply to

that conviction. Schneider appeals the latter ruling.

“An appeal from a denial of a motion for judgment of

acquittal is subject to [de novo] review, where the question is

one of statutory interpretation.” United States v. Schneider, 14

F.3d 876, 878 (3d Cir. 1994). We will affirm if “after viewing

the evidence in the light most favorable to the prosecution,

any rational trier of fact could have found the essential

elements of the crime beyond a reasonable doubt.” United

States v. Caraballo-Rodriguez, 726 F.3d 418, 424-25 (3d Cir.

2013) (en banc) (internal quotation marks omitted).

1. Mann Act precedent’s application to 18 U.S.C. §

2423(b)

Schneider argues on appeal that application of the

“innocent round trip” exception, first set out in Mortensen,

should result in a reversal of the District Court’s denial of his

motion for a judgment of acquittal on the § 2423(b) charge.

Whether Mann Act precedent applies to prosecutions under

§ 2423(b) is an issue of first impression in this Circuit.

“The statutory antecedents of § 2423(b) date back to

the Mann Act, enacted in 1910. Section 2423 evolved from

the same legislative initiative as the Mann Act, and both are .

. . components of the same general legislative framework.”

7

United States v. Garcia-Lopez, 234 F.3d 217, 220 n.3 (5th

Cir. 2000) (citation omitted). “Section 2421 is the original

Mann Act, as amended in minor respects. . . . Section

2423(b), the provision under which the defendant was

prosecuted, was added to expand the protection of minors still

further; it punishes travel in interstate commerce even if no

minor is transported, if the purpose of the travel is sex with a

minor.” United States v. McGuire, 627 F.3d 622, 624 (7th

Cir. 2010).

In 1997, the Seventh Circuit noted that “[j]udicial

interpretations of the Mann Act necessarily color our reading

of § 2423(b).” United States v. Vang, 128 F.3d 1065, 1069

(7th Cir. 1997). It concluded that:

[Section] 2423(b) and the Mann Act are part of

the same general legislative framework. More

importantly, the crucial language of § 2423(b)

employs the same “for the purpose of” phrase

used in the original Mann Act and construed by

the Supreme Court and a number of lower

courts. . . . [Furthermore, t]he familial

relationship between § 2423(b) and the Mann

Act suggests that Congress intended the same

meaning for identical phrases in the two

statutes.

Id. at 1069, 1070 n.6. The Fifth Circuit has noted that “early

cases interpreting the original Mann Act are authoritative in

construing § 2423(b).” Garcia-Lopez, 234 F.3d at 220 n.3.

We agree, so we proceed on the basis that Mann Act

precedent such as Mortensen is instructive and persuasive in §

2423(b) cases.

2. The “innocent round trip” exception to the Mann Act

8

Next, we consider whether the Mortensen “innocent

round trip” exception should be extended from prosecutions

under § 2421 to those under § 2423(b). Mortensen involved a

husband and wife who jointly operated a “house of

prostitution” in Grand Island, Nebraska. 322 U.S. at 372. In

1940, they planned a car trip to Salt Lake City, Utah, to visit

the wife’s parents. Id. Two women who were employed by

the Mortensens as prostitutes “asked to be taken along for a

vacation and the Mortensens agreed to their request.” Id. On

this vacation, they drove to and visited Yellowstone National

Park and Salt Lake City. They visited Mrs. Mortensen’s

parents, went to shows and parks, and visited other parts of

the city. Id. Upon completing the trip, they all returned

together to Grand Island, where the two women subsequently

returned to working as prostitutes. Id. Importantly, “[n]o acts

of prostitution or other immorality occurred during the two-

week trip and there was no discussion of such acts during the

course of the journey.” Id. The women were not obligated to

return to Grand Island to work for the Mortensens and were

free at any time to leave their jobs for other pursuits. Id. at

372-73.

The Mortensens were subsequently charged with two

violations of the Mann Act—that they “aided and assisted in

obtaining transportation for and in transporting, two girls in

interstate commerce from Salt Lake City to Grand Island for

the purpose of prostitution and debauchery.” Id. at 373. The

Supreme Court noted that any “intention that the women or

girls shall engage in the conduct outlawed by [the Mann Act]

must be found to exist before the conclusion of the interstate

journey and must be the dominant motive of such interstate

movement. And the transportation must be designed to bring

about such result.” Id. at 374. It ultimately held that the trip

was not taken with such an intent, but rather that “[i]t was a

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complete break or interlude in the operation of petitioners’

house of ill fame and was entirely disassociated therefrom.”

Id. at 375. In a crucial section of the opinion, the Supreme

Court wrote that:

The fact that the two girls actually resumed

their immoral practices after their return to

Grand Island does not, standing alone, operate

to inject a retroactive illegal purpose into the

return trip to Grand Island. Nor does it justify

an arbitrary splitting of the round trip into two

parts so as to permit an inference that the

purpose of the drive to Salt Lake City was

innocent while the purpose of the homeward

journey to Grand Island was criminal. The

return journey under the circumstances of this

case cannot be considered apart from its integral

relation with the innocent round trip as a whole.

There is no evidence of any change in the

purpose of the trip during its course. If innocent

when it began it remained so until it ended.

Guilt or innocence does not turn merely on the

direction of travel during part of a trip not

undertaken for immoral ends.

Id. This language gave birth to what has become known as

the “innocent round trip” exception to § 2421. See, e.g.,

Forrest v. United States, 363 F.2d 348, 350 n.1 (5th Cir.

1966); United States v. Nichol, 323 F.2d 633, 634 (7th Cir.

1963). Schneider invokes this exception here and argues that

it should apply to his conviction under § 2423(b). In the end,

we need not determine whether the exception is a feature of

§ 2423(b) cases because, even if it is, Schneider’s conduct

would not fall within it.

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3. The exception’s application to Schneider’s conviction

We turn, then, to the question of whether Schneider’s

conviction could qualify for the “innocent round trip”

exception. The modern-day version of the Mann Act, 18

U.S.C. § 2421, states that “[w]hoever knowingly transports

any individual in . . . foreign commerce . . . with intent that

such individual engage in . . . any sexual activity for which

any person can be charged with a criminal offense, or

attempts to do so, shall be [fined or imprisoned, or both].” 18

U.S.C. § 2421 (2000). On the other hand, the statute under

which Schneider was convicted, 18 U.S.C. § 2423(b), states

that “a United States citizen . . . who travels in foreign

commerce . . . for the purpose of engaging in any sexual act

(as defined in section 2246) with a person under 18 years of

age that would be in violation of chapter 109A . . . shall be

[fined, imprisoned, or both].” 18 U.S.C. § 2423(b) (2000). As

applicable to Schneider, one of the sexual acts defined in §

2246 that would be in violation of chapter 109A is an adult

knowingly engaging in a sexual act with a minor between the

ages of twelve and sixteen years old who is at least four years

younger than the adult. 18 U.S.C. § 2243(a) (2000).

Schneider argues that § 2421 and § 2423(b) use similar

language and have been interpreted in parallel; therefore, he

contends, the District Court erred when it found the “innocent

round trip” exception a basis for a judgment of acquittal on

the § 2421 transport charge but not on the § 2423(b) travel

charge.

We disagree. As an initial matter, we decline

Schneider’s invitation to compare his two counts of

conviction. The District Court’s disposition of Schneider’s

conviction under § 2421 is not before us, and therefore we do

not comment on it.

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Though Mortensen uses the language of a “dominant”

purpose, our sister Circuits have held that “[i]t suffices if one

of the efficient and compelling purposes in the mind of the

accused in the particular transportation was [illegal sexual]

conduct.” United States v. Campbell, 49 F.3d 1079, 1082 (5th

Cir. 1995) (internal quotation marks omitted); see also Vang,

128 F.3d at 1072. This is because the statement in Mortenson

that the immoral purpose must be the defendant’s most

significant motivation has long been held to be dictum. “It

now appears settled that . . . immoral conduct, need not be the

sole reason for the transportation; the Act may be violated if

[immoral conduct] is a dominant or a compelling and efficient

purpose. Despite the contrary implication suggested by the

word ‘dominant,’ it need not be the most important of

defendant’s reasons when multiple purposes are present.”

United States v. Snow, 507 F.2d 22, 24 (7th Cir. 1974)

(footnotes omitted); accord United States v. Lebowitz, 676

F.3d 1000, 1014-15 (11th Cir. 2012); United States v. Miller,

148 F.3d 207, 212 (2d Cir. 1998); United States v. Tyler, 424

F.2d 510, 512 (10th Cir. 1970); United States v. Bennett, 364

F.2d 77, 78-79 & n.4 (4th Cir. 1966); Nunnally v. United

States, 291 F.2d 205, 208 (5th Cir. 1961); Bush v. United

States, 267 F.2d 483, 485 (9th Cir. 1959); Daigle v. United

States, 181 F.2d 311, 314 (1st Cir. 1950); Mellor v. United

States, 160 F.2d 757, 764 (8th Cir. 1947). Thus, resuming

sexual contact with the victim need not be Schneider’s only

or most important purpose for a jury to convict him of

violating § 2423(b).

Several facts directly link Schneider’s travel from

Russia to the United States and back with his desire to

continue a sexually abusive relationship with the victim. The

victim and Schneider’s relationship was, from the outset,

grounded in Schneider’s promise that he would “make [the

12

victim] a star,” which was the victim’s father’s dream. App.

at 274. Further, from their very first meeting, Schneider had

discussed with the victim his “interest[] in going to America.”

App. at 567-68. The victim was “interested about [sic]

America” and “interested in going to America to study and,

perhaps, to have a career.” App. at 580-81. Schneider only

had access to the victim because he was able to help him stay

enrolled in a prestigious ballet academy and provide the

resources to help propel the victim’s ballet career. With this

trip, Schneider was providing the victim with an exciting

overseas excursion as part of Schneider’s promise to propel

his ballet career forward.

Thus, the trip to Philadelphia was a critical component

of Schneider’s scheme to sexually abuse the victim; it was not

a “complete break or interlude” in the illicit activities. See

Mortensen, 322 U.S. at 375. The trip was not an “innocent”

recreational trip or vacation that may have had the incidental

effect of currying favor with the victim and therefore is

distinguishable from Mortensen and the other cases where the

innocent round trip exception has been applied. See, e.g.,

United States v. Ross, 257 F.2d 292 (2d Cir. 1958) (defendant

and prostitute took weekend recreational trips from New

York to New Jersey); Oriolo v. United States, 324 U.S. 824

(1945) (per curiam) (defendant and prostitute took

recreational trip to Atlantic City). Because the trip was part of

Schneider’s calculated plan to manipulate and abuse the

victim, the Mortensen exception is inapplicable.

The “verdict must be assessed from the perspective of

a reasonable juror, and the verdict must be upheld as long as

it does not fall below the threshold of bare rationality.”

Caraballo-Rodriguez, 726 F.3d at 431 (internal quotation

marks omitted). “Unless the jury’s conclusion is irrational, it

must be upheld. In our role as reviewers, we must resist the

13

urge to hypothetically insert ourselves into the jury room for

deliberations.” Id. at 432. Reviewing the evidence in the light

most favorable to the prosecution, based on the facts and

testimony described above, a rational jury could conclude that

one of Schneider’s efficient and compelling purposes of the

trip from Moscow to Philadelphia and back was to further

Schneider’s sexually abusive relationship with the victim by

continuing to lay the groundwork for the victim’s dependence

on Schneider. This conclusion disqualifies Schneider from the

protection provided by the “innocent round trip” exception.

We will affirm the District Court’s denial of

Schneider’s motion for a judgment of acquittal.

B.

Before trial, Schneider moved to dismiss the

indictment as barred by a five-year statute of limitations. The

District Court denied this motion, holding that the indictment

was timely under 18 U.S.C. § 3283, a special provision

extending the statute of limitations for offenses involving the

sexual abuse of a child. We review de novo the denial of a

motion to dismiss on statute of limitations grounds. United

States v. Hoffecker, 530 F.3d 137, 168 (3d Cir. 2008).

Schneider was indicted on January 14, 2010. The

general statute of limitations is five years after the offense is

committed. 18 U.S.C. § 3282. Because the offense with

which Schneider was charged occurred on August 22, 2001,

he argues that § 3282 bars his prosecution. The Government

argues that the statute of limitations does not apply because

the version of 18 U.S.C. § 3283 in effect at the time of the

offense expressly provided that “[n]o statute of limitations

that would otherwise preclude prosecution for an offense

involving the sexual . . . abuse of a child under the age of 18

years shall preclude such prosecution before the child reaches

the age of 25 years.” 18 U.S.C. § 3283 (2000). Thus, because

14

the victim was under twenty-five years old at the time of the

prosecution, we must determine whether the offense with

which Schneider was charged “involve[ed] the sexual . . .

abuse of a child.”

The extension of the statute of limitations for offenses

“involving the sexual . . . abuse of a child under the age of 18

years” in § 3283 was originally codified at 18 U.S.C. §

3509(k) as part of the Crime Control Act of 1990, Pub. L. No.

101-647, 104 Stat. 4789 (1990), and later transferred verbatim

to § 3283. There, “sexual abuse” is defined as including the

“employment, use, persuasion, inducement, enticement, or

coercion of a child to engage in . . . the rape, molestation,

prostitution, or other form of sexual exploitation of children.”

18 U.S.C. § 3509(a)(8).

Schneider argues that this extension of the statute of

limitations cannot apply to an offense under 18 U.S.C.

§ 2423(b) because § 2423(b) merely “criminalizes interstate

travel for an illicit purpose,” United States v. Tykarsky, 446

F.3d 458, 469 (3d Cir. 2006), and does not require that any

action be taken that “involv[es] the sexual . . . abuse of a

child,” 18 U.S.C. § 3283. The statute on its face does not

require any actual illicit sexual conduct, but merely travel

with the intent to engage in such conduct. Schneider therefore

contends that by this plain reading, the sexual abuse of a child

is not an “essential ingredient” of the offense of conviction.

In support, Schneider analogizes to Bridges v. United

States, 346 U.S. 209 (1953). In that case, the Supreme Court

examined the Wartime Suspension of Limitations Act

(“WSLA”), 18 U.S.C. § 3287, which applied to offenses

“involving the defrauding of the United States,” Bridges, 346

U.S. at 215. The United States had charged the petitioner with

making a false statement in his application for naturalization.

Id. at 213. The Court had to determine whether such conduct

15

“involv[ed] the defrauding of the United States,” much as we

here must determine whether Schneider’s conduct “involv[ed]

the sexual . . . abuse of a child.” The Court stated that

Congress, in passing the WSLA, “was concerned with the

exceptional opportunities to defraud the United States that

were inherent in its gigantic and hastily organized

procurement program. It sought to help safeguard the treasury

from such frauds by increasing the time allowed for their

discovery and prosecution.” Id. at 218. As a result, the Court

held that the WSLA did not apply to the offense of knowingly

making a false statement under oath in a naturalization

proceeding because “fraud is not an essential ingredient” of it.

Id. at 222.

Schneider urges that we adopt a similar “essential

ingredient” test in this case and rule that because sexual abuse

is not an essential ingredient of a violation of § 2423(b), the

statute of limitations remains at five years. He notes that a

violation of § 2423(b) requires neither an actual child nor

actual abuse, that Congress has not evinced a clear intent in §

3283 to eliminate the statute of limitations for “bad intent”

crimes, and that statutes of limitations are to be “liberally

interpreted in favor of repose.” Toussie v. United States, 397

U.S. 112, 115 (1970) (internal quotation marks omitted).

We disagree. We hold that a violation of § 2423(b) for

“travel[ing] in foreign commerce . . . for the purpose of

engaging in any sexual act . . . with a person under 18 years

of age that would be in violation of chapter 109A,” 18 U.S.C.

§ 2423(b) (2000), involves the sexual abuse of a person under

age 18. At the time of the offense, chapter 109A made it a

crime to knowingly engage in a sexual act with a person

between the age of twelve and sixteen years if the offender

was more than four years older than the minor. See 18 U.S.C.

§ 2243(a).

16

Schneider’s reliance on Bridges is inapposite. While

Bridges did adopt an “essential ingredient” test, the

limitations-extending statute at issue was a narrowly drafted

exception specifically intended to target frauds related to war

procurement. Unlike the WSLA, § 3283 has no such

restrictive language or legislative history suggesting

congressional intent to limit its application to a specific subset

of circumstances. Congress, rather, has evinced a general

intention to “cast a wide net to ensnare as many offenses

against children as possible.” United States v. Dodge, 597

F.3d 1347, 1355 (11th Cir. 2010) (en banc). The District

Court’s ruling is consonant with, not contrary to, that intent.

In particular, Schneider’s conduct “involves sexual

abuse” as contemplated by § 3283. Schneider was convicted

of traveling with the purpose of engaging in sex with the

victim, a minor. The victim testified that before the trip to

Philadelphia, he and Schneider engaged in oral and anal sex

three to four times per week; that upon returning to Moscow

the sexual activities between Schneider and the victim

resumed and continued to occur two to three times per week;

and that Schneider engaged in psychological manipulation,

urging the victim to keep Schneider’s conduct secret, conceal

any physical injuries, and stay away from girls.

Sexual abuse includes the “persuasion, inducement,

enticement, or coercion of a child to engage in . . . sexually

explicit conduct.” 18 U.S.C. § 3509(a)(8) (2000). Sexual

abuse as defined here encompasses a wider set of behavior

than just rape or other unwanted sexual touching. Schneider

agreed to sponsor the victim on the basis of his talent, paid for

the victim’s ballet academy fees, had the victim move into his

apartment where he raped and sexually abused him

repeatedly, and traveled with the victim to the United States

so that the victim could attend a prestigious summer ballet

17

school. This series of actions sufficiently involves the

“persuasion, inducement, enticement or coercion of a child to

engage in . . . sexually explicit conduct” to invoke the longer

statute of limitations for offenses “involving the sexual . . .

abuse of a child.” See 18 U.S.C. § 3509(a)(8) (2000); 18

U.S.C. § 3283 (2000). We will affirm the District Court’s

ruling that Schneider’s violation of § 2423(b) involves sexual

abuse of a child.

C.

During his trial, Schneider sought to inform the jury

that he had been continuously incarcerated for four to five

months before trial, and was therefore unable to obtain

treatment during that time for a medical condition. The

District Court did not allow this statement because it was

concerned with its prejudicial effect on the jury. The Court

did allow Schneider to testify that it had been impossible for

him to seek treatment during this period without mentioning

his incarceration. He appeals the District Court’s evidentiary

ruling. “We review the District Court’s decisions as to the

admissibility of evidence for abuse of discretion.” United

States v. Serafini, 233 F.3d 758, 768 n.14 (3d Cir. 2000).

In July 2008, Schneider learned of the victim’s

allegations of sexual abuse, and in August 2008, the victim

filed a civil complaint against Schneider. In November 2009,

in connection with the civil case, the victim drew two pictures

of Schneider’s erect penis which depict a curvature, and on

January 22, 2010, the victim signed an affidavit in the civil

case describing Schneider’s penis when erect, and attached

the two drawings to the affidavit. As of January 27, 2010, the

victim’s attorneys had provided the affidavit and drawings to

Schneider’s attorneys.

On March 27, 2010, Schneider was arrested abroad.

He was held for two days and released on bail on March 29,

18

2010. On May 17, 2010, Schneider was returned to custody,

and on May 28, 2010, Schneider was brought to the Federal

Detention Center in Philadelphia, where he was held through

the trial. On August 4, 2010, while Schneider was detained,

Dr. Victor Carpiniello, an expert urologist, examined

Schneider’s erect penis.

Dr. Carpiniello testified that the victim’s description

and drawings of Schneider’s erect penis were consistent with

a condition known as Peyronie’s disease. This disease is

caused by a formation of plaque, or hard fibrous tissue, on the

penile shaft, which causes abnormal curvature. The curvature

resulting from Peyronie’s disease is mainly treated by

surgical removal of the plaque, but potentially also by

“injectable collagenase, radiation, oral vitamin E, topical

vitamin E, Verapamil, Interferon Alpha 2B, iontoforesis and

electro corporeal shock wave therapy,” none of which are

likely to leave scarring. App. at 984-85. Dr. Carpiniello also

testified that when he examined Schneider, on August 4,

2010, he determined that Schneider had a normal erection

without curvature and noted “no scarring or evidence of a

procedure.” App. at 969. Finally, Dr. Carpiniello noted that,

in his opinion, Schneider does not have and never had

Peyronie’s disease.

Following Dr. Carpiniello’s testimony, but prior to

Schneider’s testimony, Schneider’s counsel informed the

District Court that he intended to elicit testimony from

Schneider that Schneider had been incarcerated for the prior

four months, since May 27, 2010. The District Court

instructed that Schneider could testify that from the date he

went back into custody until the date of his testimony, it was

impossible for him to seek treatment for Peyronie’s disease.

The District Court further ruled that Schneider could not “say

or mention anything along the lines of prison,” App. at 1315,

19

on the basis that evidence of Schneider’s incarceration would

be unfairly prejudicial and would create sympathy for him

with the jury.

Evidence may only be admitted if it is relevant; that is,

if it “has any tendency to make a fact more or less probable

than it would be without the evidence; and . . . the fact is of

consequence in determining the action.” Fed R. Evid. 401.

Not all relevant evidence, however, is admissible. A District

Court “may exclude relevant evidence if its probative value is

substantially outweighed by a danger of . . . unfair prejudice.”

Fed. R. Evid. 403. In this context, unfair prejudice means “an

undue tendency to suggest decision on an improper basis,

commonly, though not necessarily, an emotional one.” Fed.

R. Evid. 403 advisory committee’s note. Because the District

Court allowed Schneider to testify that he could not receive

treatment during the period from May 2010 until September

2010, but not that he was incarcerated during this period, we

review only the judge’s ruling prohibiting Schneider from

commenting on his incarceration for abuse of discretion. See

Serafini, 233 F.3d at 768 n.14. The District Court abuses its

discretion if its decision “rests upon a clearly erroneous

finding of fact, an errant conclusion of law or an improper

application of law to fact.” Newton v. Merrill Lynch, Pierce,

Fenner & Smith, Inc., 259 F.3d 154, 165-66 (3d Cir. 2001)

(internal quotation marks omitted). “In order to justify

reversal, a [D]istrict [C]ourt’s analysis and resulting

conclusion must be arbitrary or irrational.” United States v.

Universal Rehab. Servs. (PA), Inc., 205 F.3d 657, 665 (3d

Cir. 2000) (en banc) (internal quotation marks omitted).

Therefore, we examine whether the District Court arbitrarily

or irrationally weighed this evidence’s probative value against

its danger of unfair prejudice.

1. Probative value

20

Schneider contends that this testimony holds probative

value because it supports his argument to the jury that his

penis did not match the victim’s drawings and description,

thus undermining a key piece of the evidence. He states that

the facts that he was unable to receive treatment prior to the

expert examination due to his incarceration and that the

expert’s testimony was that his penis—examined while

incarcerated—did not match the victim’s drawings and

descriptions, support his argument that the victim did not

have knowledge of what his penis looked like, and that

Schneider therefore did not have sexual contact with the

victim. Schneider contends that this adverse ruling “made it

far more likely [that he] would be convicted on these charges

by excluding compelling evidence that [the victim] had

fabricated his claims of sexual abuse.” Appellant’s Br. at 47.

Schneider overstates the probative value of this

testimony, as he had the ability to alter his penile condition

prior to his ultimate incarceration before trial. Schneider first

learned of the victim’s accusations of sexual abuse in August

2008, eighteen months before he was initially arrested, and

first learned of the victim’s affidavit and drawings by January

27, 2010, two months before he was arrested. Furthermore,

Schneider was free on bail for six weeks from March 29,

2010 to May 17, 2010. Because Schneider had multiple

periods to receive treatment before he was incarcerated, the

fact that he could not receive treatment in the months leading

up to the trial has little probative value to the crucial issue of

the victim’s familiarity with Schneider’s penis. In addition,

because Schneider was permitted to mention that he could not

receive treatment during the pre-trial period, the incremental

probative value of mentioning his incarceration is low.

2. Potential for unfair prejudice

21

Schneider argues that allowing him to make this

statement would have presented little potential for unfair

prejudice. Schneider contends that “any general inclination to

exclude from evidence the fact of a criminal defendant’s

pretrial incarceration is to protect the defendant, not the

prosecution, from unfair prejudice.” Appellant’s Br. at 47-48.

We disagree. While this argument is facially plausible, it is

supported by no citation to any case law or secondary

authority. See Appellant’s Br. at 47-48. Nor do the Federal

Rules of Evidence, either in their text or in the advisory

committee’s notes, contain any instruction or indication that

evidence of incarceration is inadmissible if the defendant

would be prejudiced, but admissible if the prosecution would

be prejudiced.

The Government, on the other hand, argues that

allowing Schneider to testify in this manner holds great

potential for unfair prejudice. It contends that Schneider

sought to stir sympathy with the jury, and identifies other

cases where evidence was ruled inadmissible due to its

potential to induce sympathy for the defendant in the jury. See

United States v. Harris, 491 F.3d 440, 447 (D.C. Cir. 2007);

United States v. Pintado-Isiordia, 448 F.3d 1155, 1158 (9th

Cir. 2006) (per curiam). When a District Court decides

whether evidence, such as Schneider’s testimony, is

admissible, it must weigh the probative value of the testimony

with the potential for unfair prejudice. Only when the

probative value is “substantially outweighed” by the potential

for unfair prejudice is the evidence inadmissible. Schneider’s

testimony on incarceration has little probative value, but the

potential for unfair prejudice is real. The District Court did

not abuse its discretion in making this judgment.

We therefore will affirm the District Court’s ruling on

this issue.

22

D.

At trial, the victim testified that Schneider showed him

the film Nijinsky, which told the story of Vaslav Nijinsky, a

ballet dancer in the early 1900s, and his older patron and

lover, Sergei Diaghilev. The District Court admitted into

evidence excerpts of the film which depict Diaghilev kissing

Nijinsky, Nijinsky performing in a ballet that includes an act

of simulated masturbation, and Nijinsky marrying a woman

and becoming mentally ill. At various points, the Court also

allowed the introduction of other testimony regarding a

birthday card, porcelain figurines of faun-like creatures,

payment for goods, and Schneider’s psychological

relationship with the victim.

After the trial, Schneider moved for a new trial due to

the introduction of unduly prejudicial evidence, claiming that

evidence relating to Count Two, upon which Schneider was

ultimately granted a judgment of acquittal, prejudicially

spilled over to the jury’s assessment of Count One. The

District Court ruled that while it committed error in admitting

the evidence because it was unduly prejudicial, the

introduction of the evidence was harmless. Schneider argues

that the District Court erred, while the United States argues

that the District Court properly admitted the evidence as

intrinsic, and that the evidence was not unfairly prejudicial, or

the error, if any, was harmless.

We review the District Court’s decision for an abuse of

discretion. United States v. Butch, 256 F.3d 171, 175 (3d Cir.

2001). If we find that the District Court abused its discretion,

we review de novo whether that error was prejudicial or

harmless. United States v. Cross, 308 F.3d 308, 317-18 (3d

23

Cir. 2002).1 An error is harmless when it is “highly probable

that it did not prejudice the outcome.” Id. at 318 (internal

quotation marks omitted). “While the Government bears the

burden of showing that the error was harmless, we can affirm

for any reason supported by the record.” Id. at 326 (citation

omitted).

“In practice, therefore, prejudicial spillover analysis . . .

begins by asking whether any of the evidence used to prove

the [count on which the defendant was acquitted] would have

been inadmissible to prove the remaining count. . . . [I]f the

answer is ‘yes,’ then we must consider whether the verdict on

the remaining count was affected adversely by the evidence

that would have been inadmissible at a trial limited to that

count.” Id. at 318. If all evidence on the discarded counts

would remain admissible to prove the remaining count, our

inquiry ends. Id.

As already noted, a court may exclude relevant

evidence if “its probative value is substantially outweighed by

a danger of . . . unfair prejudice.” Fed. R. Evid. 403.

Schneider argues that the Nijinsky excerpts were inadmissible

to prove Count One because they “included sexual content

unrelated to the charges in this case,” were “extremely

prejudicial,” and were “compelling and emotional.”

Appellant’s Br. at 50-51, 53, 64. He contends that the

prosecutor “was permitted to show the jury highly prejudicial

excerpts from that film that portrayed the older Diaghilev

1

The error alleged here is not of constitutional

dimension. If it were, it could only be called “harmless” if we

could say that, beyond reasonable doubt, it did not contribute

to the verdict. See Mitchell v. Esparza, 540 U.S. 12, 17-18

(2003).

24

seducing and then controlling the much younger Nijinsky,”

Appellant’s Br. at 53, which was admitted solely to establish

the victim’s dependence on Schneider, a unique element of

Count Two—a count on which Schneider was later granted a

judgment of acquittal. In support, he notes that when the

attorneys were discussing the admissibility of the Nijinsky

excerpts at trial, the prosecutor stated that “[i]t shows his . . .

control over the victim and the psychological inference.”

App. at 481. Furthermore, in her closing argument, the

prosecutor mentioned the Nijinsky evidence as supporting an

element of Count Two which was not required in Count

One—compulsion. App. at 1625-26. Finally, ruling on the

motion for a new trial after Schneider’s conviction, the

District Court wrote that it “agree[d that] excerpts of the film

were unduly prejudicial inasmuch as they included sexual

content unrelated to the charges in this case.” App. at 49.

This argument is unpersuasive. The Nijinsky evidence

is admissible as evidence intrinsic to Count One. Rule 404(b)

“does not apply to evidence of uncharged offenses committed

by a defendant when those acts are intrinsic to the proof of

the charged offense.” Hoffecker, 530 F.3d at 189 (internal

quotation marks omitted). “[A]cts are intrinsic when they

directly prove the charged [offense].” Cross, 308 F.3d at 320

(internal quotation marks omitted). “Even if the evidence is

‘extremely prejudicial to the defendant,’ ‘the court would

have no discretion to exclude it because it is proof of the

ultimate issue in the case.’” Hoffecker, 530 F.3d at 189

(quoting United States v. Gibbs, 190 F.3d 188, 218 (3d Cir.

1999)). For example, the fact that Schneider showed the

victim the movie and told him that he should not leave

Schneider in the way that Nijinsky left Diaghilev made it

more likely that Schneider and the victim had a sexual

relationship before the trip to Philadelphia, which

25

consequently made it more likely that Schneider intended to

resume a sexual relationship upon returning to Moscow.

Furthermore, the other evidence of Schneider’s prolonged

psychological entanglement with the victim also directly

proved the crime charged in Count One because it spoke to

Schneider’s purpose in traveling back to Russia—a key

component of his ultimate conviction.

Because the conduct was intrinsic to Count One,

Cross, 308 F.3d at 320, and the District Court’s initial

evidentiary ruling was not “clearly contrary to reason,” Butch,

256 F.3d at 175 (internal quotation marks omitted), we hold

that the District Court did not abuse its discretion in denying

the motion for a new trial. More specifically, we hold that

Nijinsky evidence is admissible as intrinsic evidence, in

contrast to the District Court deeming its admission erroneous

as unfairly prejudicial, but ultimately harmless. “[W]e can

affirm for any reason supported by the record,” Cross, 308

F.3d at 326, and we do so in this instance. Though we base

our decision on a different ground, we will affirm the District

Court’s dismissal of a motion for a new trial on this issue.

E.

Schneider appeals the District Court’s denial of his

motion for a new trial under Federal Rule of Criminal

Procedure 33(b)(1). Schneider claims he discovered new

evidence in connection with the ongoing civil suit that the

victim is pursuing against him “strongly suggest[ing] perjury

by [the victim] at trial and a significant Brady violation.”

26

Appellant’s Br. at 64-65.2 The District Court did not grant an

evidentiary hearing on the matter and denied Schneider’s

motion for a new trial. We review the District Court’s denial

of a motion for a new trial for abuse of discretion. United

States v. Salahuddin, 765 F.3d 329, 346 (3d Cir. 2014).

In order to succeed on a motion for a new trial based

on newly-discovered evidence, the defendant carries the

burden of establishing five elements:

(a) [T]he evidence must be in fact newly

discovered, i.e.[,] discovered since trial; (b)

facts must be alleged from which the court may

infer diligence on the part of the movant; (c) the

evidence relied on must not be merely

cumulative or impeaching; (d) it must be

material to the issues involved; and (e) it must

be such, and of such nature, as that, on a new

trial, the newly discovered evidence would

probably produce an acquittal.

United States v. Quiles, 618 F.3d 383, 388-89 (3d Cir. 2010)

(internal quotation marks omitted).

1. Newly-discovered Brady violation

Schneider first asserts that he should be granted a new

trial based on a newly-discovered violation of the rule in

2

We have granted a motion to seal portions of the

appendix filed in this case. In this section, we find it

necessary to include some of the sealed information, but have

revealed it in such a way as to carry out the intent and

purpose of the motion to seal.

27

Brady v. Maryland, 373 U.S. 83 (1963). “To establish a due

process violation under Brady, then, a defendant must show

that: (1) evidence was suppressed; (2) the suppressed

evidence was favorable to the defense; and (3) the suppressed

evidence was material either to guilt or to punishment.”

United States v. Pelullo, 399 F.3d 197, 209 (3d Cir. 2005)

(internal quotation marks omitted). Schneider’s basis for his

claim is that the victim testified in a deposition in his civil

case that he was paid for his testimony in the criminal case—

payments that were undisclosed to the defense. While

ordinarily this would raise a red flag, see, e.g., United States

v. Bagley, 473 U.S. 667, 683-84 (1985) (holding that there

was a Brady violation when federal prosecutors withheld

evidence of inducements made to witnesses to encourage

them to testify against the defendant), in this case these

revelations are insufficient to establish a Brady violation or

other grounds for a new trial. In the victim’s deposition, the

following exchange occurred:

Q: Okay. Did you ever get witness vouchers

from the government for testifying?

A: What is witness vouchers?

Q: I’m asking you. Do you know what they are?

A: I was paid for testifying.

Q: How did you get paid?

A: Michelle, Mrs. Morgan3 went with me to the

place to withdraw money.

...

3

Assistant U.S. Attorney Michelle Morgan-Kelly.

28

Q: Did she go over to the place like to cash a

check and she’d give them a slip of paper,

they’d give you money?

A: Yes.

Q: And who was the slip of paper from?

A: From Michelle Morgan Kelly. [sic]

App. at 2353.

Schneider cannot carry his burden based on this

testimony. First, he has not established that the evidence was

undisclosed under Brady or that it was newly-discovered

under Rule 33. The witness fees and per diem stipends that

the victim was paid are required by statute. See 28 U.S.C. §

1821. Furthermore, the payments were disclosed on the

second day of trial—and two days before the victim

testified—in an email from an Assistant United States

Attorney to Schneider’s trial counsel, who responded that he

did not intend to cross-examine the victim on it. Nor can

Schneider establish that the payment of fees was favorable to

the defense (the second Brady element) because the victim,

an alleged crime victim, was paid via statutorily-mandated

vouchers, unlike the witness in United States v. Bagley, who

was paid in cash as a cooperating informant in exchange for

information. 473 U.S. at 683. The District Court “[found]

Schneider’s argument as to the witness vouchers baseless,”

and denied the motion for a new trial on this ground. App. at

65.

Therefore, we will hold that District Court did not

abuse its discretion in denying Schneider’s motion for a new

trial on this basis.

29

2. Newly-discovered perjury

Schneider next asserts that he should be granted a new

trial based on his discovery that the victim perjured himself in

connection with the civil trial. The District Court rejected this

argument, which we review for abuse of discretion.

Salahuddin, 765 F.3d at 346. Schneider contends that here we

should use the test from Larrison v. United States, 24 F.2d 82

(7th Cir. 1928), to determine whether he should be granted a

new trial. This test has three prongs:

(a) The court is reasonably well satisfied that

the testimony given by a material witness is

false. (b) That without it the jury might have

reached a different conclusion. (c) That the

party seeking the new trial was taken by

surprise when the false testimony was given and

was unable to meet it or did not know of its

falsity until after the trial.

Larrison, 24 F.2d at 87-88. Not only has “[t]he Larrison test .

. . not been adopted by this Court,” Gov’t of V.I. v. Lima, 774

F.2d 1245, 1251 n.4 (3d Cir. 1985), but even the Seventh

Circuit has subsequently abandoned it, United States v.

Mitrione, 357 F.3d 712, 718 (7th Cir. 2004) (“Today, we

overrule Larrison and adopt the reasonable probability test.”),

vacated on other grounds, 543 U.S. 1097 (2005). Therefore,

we use the same five-factor test from Quiles identified above.

618 F.3d at 388-89.

Schneider says that he discovered “notes taken by a

professional quoting the lone accuser saying that he

committed perjury in relation to the same case, fears going to

prison if found out, and is concerned that the conviction will

be overturned.” Appellant’s Br. at 65-66. His argument fails

at least on the fifth prong—“[the newly discovered evidence]

30

must be such, and of such nature, as that, on a new trial, the

newly discovered evidence would probably produce an

acquittal.” Quiles, 618 F.3d at 388-89 (internal quotation

marks omitted). The evidence of this alleged perjury that

Schneider complains of consists of the victim’s

psychologist’s notes and summaries of sessions in May and

June 2012. These notes and summaries describe the victim’s

worry about minor inconsistencies in the civil case and the

victim’s trial strategy.

Schneider’s argument is unavailing. First, Schneider is

unable to identify any specific alleged perjury. Further, when

these excerpts are placed in context of the overall timeline of

the civil case, it becomes clear that there is no perjury and

that the victim was concerned about inaccuracies in his

testimony about Susan Schneider,4 Kenneth Schneider’s

sister, in a civil case deposition. As noted above, the victim

sued Schneider, Schneider’s parents, Schneider’s siblings,

and the Apogee Foundation5 in a civil suit. The victim was

first deposed in connection with this suit on February 28,

2012, where he discussed, among other things, Schneider’s

sister. In April 2012, he spoke with his initial attorney about

the civil case, and expressed his concerns about his testimony

in the civil case to his psychologist in May 2012. The

psychologist’s notes were obtained by the defense on August

3, 2012, and turned over to the victim’s new attorneys shortly

4

Susan Schneider was not a party to the criminal

prosecution and did not testify in connection with the criminal

prosecution.

5

The Apogee Foundation is Schneider’s purported

charitable foundation for gifted children in the fine arts. The

victim was nominally a board member of the foundation.

31

thereafter. A few days later, the victim, through his attorneys,

provided two points of errata to correct his February

deposition regarding statements he previously had attributed

to Susan Schneider. See Supp. App. at 59-69. Given this

context, it appears that the victim’s comments to his

psychologist concern testimony he gave about Susan

Schneider’s comments, and do not constitute testimony that

would rise to the level of perjury which would be “of such

nature, as that, on a new trial, the newly discovered evidence

would probably produce an acquittal.” Quiles, 618 F.3d at

388-89 (internal quotation marks omitted). In addition, the

psychologist’s notes are also strongly corroborative of the

victim’s testimony at trial. They include statements about

Schneider’s predatory and abusive relationship with the

victim. App. at 2325.

Because the District Court did not abuse its discretion

when it declined to hold an evidentiary hearing on or grant

Schneider’s motion for a new trial based on the newly-

discovered “perjury,” we will affirm the District Court’s

ruling.

F.

When it sentenced Schneider, the District Court began

by selecting United States Sentencing Guideline (“U.S.S.G.”)

§ 2A3.2 as the starting point for its offense level calculation.

The District Court then invoked a cross-reference found in

§ 2A3.2, which dictates that “[i]f the offense involved

criminal sexual abuse or attempt to commit criminal sexual

abuse (as defined in 18 U.S.C. 2241 or 2242), apply

§ 2A3.1.” U.S. Sentencing Guidelines Manual § 2A3.2(c)(1)

(2000). The District Court determined that Schneider’s

offense level under § 2A3.1 was thirty-five. Schneider

appeals the District Court’s use of the § 2A3.1 cross-

reference.

32

“We exercise plenary review over a district court’s

interpretation of the Sentencing Guidelines.” United States v.

Solomon, 766 F.3d 360, 364 (3d Cir. 2014). As the first step

in calculating the Guidelines range, a court must “[d]etermine

the offense guideline section in Chapter Two (Offense

Conduct) applicable to the offense of conviction (i.e., the

offense conduct charged in the count of the indictment or

information of which the defendant was convicted).”

U.S.S.G. § 1B1.2(a). Next, “[a]fter determining the

appropriate offense guideline section pursuant to subsection

(a) of this section, determine the applicable guideline range in

accordance with § 1B1.3 (Relevant Conduct).” Id. § 1B1.2(b).

The term “offense,” as used in the cross-reference,

“means the offense of conviction and all relevant conduct

under § 1B1.3.” Id. § 1B1.1 cmt. n.1(H). Therefore, the cross-

reference may be invoked if Schneider’s offense of

conviction “involved . . . sexual abuse” or if Schneider’s

relevant conduct under § 1B1.3 “involved . . . sexual abuse.”

Id. § 2A3.2(c)(1). The District Court found that Schneider’s

relevant conduct under § 1B1.3 “involved sexual abuse”

sufficient to trigger the cross-reference. It is this ruling that

Schneider appeals.

Section 1B1.3 provides that, “[u]nless otherwise

specified, (i) the base offense level where the guideline

specifies more than one base offense level, (ii) specific

offense characteristics and (iii) cross references in Chapter

Two, and (iv) adjustments in Chapter Three, shall be

determined on the basis of the following:

(1)(A) all acts and omissions committed, aided,

abetted, counseled, commanded, induced,

procured, or willfully caused by the defendant .

. . that occurred during the commission of the

offense of conviction, in preparation for that

33

offense, or in the course of attempting to avoid

detection or responsibility for that offense; . . .

[and]

...

(3) all harm that resulted from the acts and

omissions specified . . . above, and all harm that

was the object of such acts and omissions.”

Id. § 1B1.3 (emphases added). Thus, the District Court was

correct to consider all of Schneider’s acts that occurred in

preparation for his offense and during the commission of his

offense, as well as all harm that resulted from those acts.

Furthermore, “[c]onduct that is not formally charged or is not

an element of the offense of conviction may enter into the

determination of the applicable guideline sentencing range.”

U.S.S.G. § 1B1.3 cmt. background.

Schneider’s offense was a violation of 18 U.S.C. §

2423(b) (2000)—foreign travel with the intent to engage in a

sexual act with a minor between the ages of twelve and

sixteen. The District Court provided a list of Schneider’s

actions that were relevant to this offense and pertained to

Schneider’s sexual relationship with the victim. First, it noted

that Schneider was able to commit the offense because he had

cultivated a years-long sexual relationship with the victim by

means of sexual abuse enabled by the victim’s dependence on

Schneider. App. at 2296. It also wrote that “Schneider

fostered the illicit relationship through physical and

psychological manipulation and economic threats with the

intent of maintaining the sexual abuse until and beyond the

time of the conduct constituting the offense of conviction.”

Id.

34

The District Court did not err. These actions are

relevant offense conduct that “involve sexual abuse” because

they were “acts . . . that occurred . . . in preparation for [the]

offense”—Schneider’s plan to travel back to Russia in order

to continue sexually abusing the victim—and because they

facilitated “harm that resulted from [these] acts”—

Schneider’s sexual abuse by force of the victim when he

returned to Russia. U.S.S.G. § 1B1.3. We will affirm the

District Court’s invocation of the cross-reference in U.S.S.G.

§ 2A3.2(c)(1).

IV.

For the reasons set forth above, we will affirm the

judgment of the District Court.

35