U.S. v. Hayward

• Decision Date: 05 March 2004
• Docket Number: No. 02-4540.,02-4540.
• Citation: 359 F.3d 631
• Parties: UNITED STATES of America v. Scott HAYWARD, Appellant.
• Court: U.S. Court of Appeals — Third Circuit

359 F.3d 631

UNITED STATES of America v. Scott HAYWARD, Appellant.

No. 02-4540.

United States Court of Appeals, Third Circuit.

Argued December 11, 2003.

Opinion filed March 5, 2004.

Shelley Stark, Karen Sirianni Gerlach (Argued), Michael J. Novara, Renee Pietropaolo, Lisa B. Freeland, Office of the Federal Public Defender, Pittsburgh, for Appellant, Scott Hayward.

Mary Beth Buchanan, Kelly R. Labby (Argued), Bonnie R. Schlueter, Office of the United States Attorney, Pittsburgh, for Appellee, United States of America.

Before AMBRO, FUENTES, and GARTH, Circuit Judges.

OPINION

GARTH, Circuit Judge.

Scott Hayward ("Hayward") appeals from the District Court's judgment and sentence. Judgment was entered against Hayward after a jury convicted him of violating 18 U.S.C. § 2423(a) (transportation of a minor with intent to engage in criminal sexual 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 to the District Court for re-sentencing.

I.

At the time the facts giving rise to this case occurred, Hayward and his wife owned the Pennsylvania Cheerleading Center ("PCC"), a competitive cheerleading school located outside of Pittsburgh, Pennsylvania. PCC conducted after-school and weekend classes in cheerleading, tumbling and acrobatics, and prepared its students for team cheerleading competitions. Hayward worked at PCC as a cheerleading coach.

In January 2000, PCC and other teams were invited to take part in the World Cheerleading Association's "World Tour of Champions" to be held on April 8-17, 2000, which involved a tour of Europe and a national competition. V-14, V-15 and V-18,¹ along with three other cheerleaders aged 16 and 17, went on the tour with Hayward.

Prior to the trip, Hayward held a meeting for the participating cheerleaders' parents, at which he stated that he and his wife, Mary Hayward, and a PCC coach named Larry Guerrero would serve as chaperones for the trip. Hayward also distributed an itinerary supplied by the World Cheerleading Association and detailed the rules for the trip, which included prohibitions on smoking, drinking, drug use and contact with boys. Immediately after the parents' meeting, Hayward met with the six girls attending the tour and told them that the itinerary was "just for show" and that they would "have fun" on the trip. He told the cheerleaders they would be allowed to drink alcohol on the trip. He also said that "whatever happened in London would stay in London." Hayward testified at trial that he did so because the girls were upset after reading the strict itinerary and were threatening not to attend the tour.

Upon arriving at the airport, the girls and their parents were informed that Mary Hayward and Larry Guerrero were not leaving with the group, but would join them a few days later. When the cheerleaders left for England, Scott Hayward was the only chaperone.

At the hotel in London, the girls slept three to a room — V-14, V-15 and V-18 shared one room, and the other three girls shared an adjoining room. On the night of April 12, 2000, Hayward took the girls to a nightclub in London where they drank alcohol. The group returned to the hotel room in which the 16-year olds and the 17-year-old were staying.² Hayward began to rub the back of one of the girls, slipping his hand inside her pants. Hayward stated to another girl: "Babe, I'm sleeping with you tonight." He then appeared to doze off. Both of the 16-year-olds and the 17-year old also fell asleep, at which point Hayward awoke and announced that he was going to sleep in the adjoining room shared by V-14, V-15 and V-18.

Once inside the adjoining room, Hayward directed V-14, V-15 and V-18 to push two of the three single beds together. V-14 and Hayward lay down on the beds, and V-18 jumped on Hayward and then rolled off to one side. V-15 then joined the others on the bed. At this point, V-14 and V-15 were lying to one side of Hayward, and V-18 was on his other side.

The precise order of events thereafter is unclear. Initially, Hayward pulled down V-15's shirt and fondled her breasts. V-15 testified: "He began to untie my shirt. It tied back here. It was just two strings. And he rolled me over, pulled my shirt down, and fondled me."

While he was fondling V-15, Hayward pulled V-14's face toward his and forced her to kiss him. The significant testimony concerning the sequence of events that took place that evening was V-14's. She testified that Hayward pushed her head toward his penis. Some time later, he removed his trousers and placed V-14's and V-18's hands on his penis.

The three girls then went to the hotel lobby, and later returned to their room once Hayward had vacated it. The following day, V-14 reported the incident to a cheerleading judge affiliated with the World Cheerleading Association, who, in turn, alerted Scotland Yard.

Scotland Yard investigators took videotaped statements from V-14, V-15 and V-18, and performed tests on semen samples found on the clothing worn by V-14 and V-18 on the night in question. Hayward was questioned by Scotland Yard, and gave two recorded statements. Hayward also gave blood samples to investigators two days after the assaults occurred. The toxicology report evidenced no drugs or alcohol in his blood, although due to the lapse of time it was inconclusive as to Hayward's impairment at the time these events took place. DNA testing established that there was only one chance in a billion that a semen sample taken from the girls' clothing was not Hayward's semen.

When Hayward returned to the United States, he was charged and indicted in a two-count indictment by a grand jury in the Western District of Pennsylvania. Count One charged Hayward with transporting two females under age 18 in interstate and foreign commerce with the intent to engage in illegal sexual activity, in violation of 18 U.S.C. § 2423(a).³ Count Two charged Hayward with transporting a female in interstate and foreign commerce with the intent to engage in illegal sexual activity, in violation of 18 U.S.C. § 2421.⁴ Hayward pled not guilty and testified that he had blacked out and remembered nothing after returning to the hotel.

The jury convicted Hayward of Count One, finding that he had violated § 2423(a) with respect to V-14 and V-15. Hayward was acquitted of Count Two, which charged him with violating § 2421 (transporting for illegal sexual activity) with respect to V-18. The District Court Judge sentenced Hayward to 180 months in prison for attempted criminal sexual abuse pursuant to § 2A3.1 of the 2002 United States Sentencing Guidelines ("U.S.S.G."), rather than criminal sexual contact under § 2A3.4.⁵ He also sentenced Hayward to a 3-year term of supervised release, and ordered him to make restitution to his victims and their parents in the amount of $12,289.78. Hayward filed a timely notice of appeal.

Hayward makes six claims on appeal: (1) the District Court improperly allowed expert testimony from behavioral scientist Kenneth Lanning pertaining to the general profile of an acquaintance molester; (2) the District Court at trial improperly allowed the prosecution to play Hayward's tape recorded statements to Scotland Yard investigators; (3) the District Court should have instructed the jury that criminal sexual activity had to be "the dominant" — rather than "a significant or motivating" — purpose of Hayward's trip to England; (4) Hayward should have been sentenced for criminal sexual contact under U.S.S.G. § 2A3.4, instead of for attempted criminal sexual abuse under U.S.S.G. § 2A3.1; (5) the District Court failed to grant Hayward's request for a downward departure at sentencing because it did not understand that it had the authority to do so; and (6) the District Court should not have included the cheerleaders' parents as victims for restitution purposes.

As to Hayward's first, second and third claims, we find no error in the admission of the expert testimony and the tape recordings at trial or in the jury charge. We agree with Hayward on his fourth claim, and will reverse and remand the case for re-sentencing for criminal sexual contact pursuant to U.S.S.G. § 2A3.4. As a result, Hayward's fifth claim (downward departure) is moot. Finally, we reject Hayward's sixth claim (restitution), and will affirm the District Court's restitution order.

We have jurisdiction to hear this appeal pursuant to 18 U.S.C. § 1291.

II.

We briefly address Hayward's arguments that the District Court erred at trial in admitting certain evidence and in charging the jury. We hold his arguments to be meritless.

1.

The first of these claims is that the District Court improperly allowed expert testimony adduced from behavioral scientist Kenneth Lanning ("Lanning") pertaining to the general profile of an acquaintance molester. The District Court Judge in response to Hayward's pre-trial motion to bar Lanning's testimony,⁶ limited Lanning's testimony to "acquaintance child molesters' pattern of activity," and prohibited Lanning from testifying as to Hayward himself or as to Hayward's intent.

After testifying as to his experience and credentials, Lanning was qualified by the District Court Judge as an expert in the field of behavioral science.⁷ Lanning then testified about various types of child molesters, focusing primarily on "acquaintance" child molesters. Lanning described the patterns exhibited by many acquaintance child molesters, including selection of victims from dysfunctional homes, formulation of a customized seduction process, lowering the victim's inhibitions about sex, isolating the victim, and soliciting the victim's cooperation in the victimization process.

Hayward argues that Lanning's testimony violated Rule 704(b) of the Federal Rules of Evidence, which prohibits expert witnesses from testifying with respect to the mental state...