United States v. Hayward

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Precedential or Non-Precedential: Precedential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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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

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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

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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.

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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

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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

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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.

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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

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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).

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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.

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