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Precedential or Non-Precedential: Precedential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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"USA v. Hayward" (2004). 2004 Decisions. Paper 895.
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 PRECEDENTIAL Shelley Stark
Karen Sirianni Gerlach (Argued)
UNITED STATES Michael J. Novara
COURT OF APPEALS Renee Pietropaolo
FOR THE THIRD CIRCUIT Lisa B. Freeland
Office of the Federal Public Defender
__________ 1001 Liberty Avenue
1450 Liberty Center
No. 02-4540 Pittsburgh, Pennsylvania 15222
__________
Attorneys for Appellant,
UNITED STATES OF AMERICA Scott Hayward

v. Mary Beth Buchanan
Kelly R. Labby (Argued)
SCOTT HAYWARD, Bonnie R. Schlueter
Appellant Office of the United States Attorney
__________ 700 Grant Street
Suite 400
On Appeal from the United States Pittsburgh, Pennsylvania 15219
District Court
for the Western District of Pennsylvania Attorneys for Appellee,
Criminal Action No. 02-cr-00063 United States of America
District Judge: Honorable Alan N. Bloch
__________
Garth, Circuit Judge:
Argued December 11, 2003
___________ Scott Hayward (“Hayward”)
appeals from the District Court’s
Before: AMBRO, FUENTES, and judgment and sentence. Judgment was
GARTH, Circuit Judges entered against Hayward after a jury
convicted him of violating 18 U.S.C. §
(Opinion Filed: March 5, 2004) 2423(a) (transportation of a minor with
intent to engage in criminal sexual
OPINION activity). He was sentenced to 15 years
in prison, with a three-year term of
__________ supervised release, and was ordered to
make restitution in the amount of
$12,289.78. We will affirm Hayward’s
conviction, but we will remand the case

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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.

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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.

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 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.

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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.

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 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.

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 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. . . .

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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.

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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.

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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

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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”

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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.

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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

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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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