United States v. Schneider

• Decision Date: 09 September 2015
• Docket Number: Nos. 12–1145,13–1491.,s. 12–1145
• Parties: UNITED STATES of America v. Kenneth SCHNEIDER, Appellant.
• Court: U.S. Court of Appeals — Third Circuit

801 F.3d 186

UNITED STATES of America

v.Kenneth SCHNEIDER, Appellant.

Nos. 12–1145

13–1491.

United States Court of Appeals, Third Circuit.

Argued Jan. 20, 2015.

Filed: Sept. 9, 2015.

Howard J. Bashman, Esq., Argued, Willow Grove, PA, Counsel for Appellant.

Vineet Gauri, Esq., Michelle Morgan, Esq., Argued, Daniel A. Velez, Esq., Office of United States Attorney, Philadelphia, PA, Counsel for Appellee.

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

OPINION OF THE COURT

FISHER, Circuit Judge.

These appeals concern the criminal conviction of Kenneth Schneider on the charge of traveling in foreign commerce with the intent to engage in sex with a minor between the ages of twelve and sixteen, in violation of 18 U.S.C. § 2423(b) (2000). They pose questions involving pre-and post-trial motions, evidentiary issues, and a sentencing issue, each of which Schneider asserts was incorrectly decided by the District Court. Because the District Court did not err or abuse its discretion, we will affirm each of these rulings.

I.

The victim in this case was born in Russia in 1986. At age ten, he was sent to study ballet at the Bolshoi Academy in Moscow, approximately three hours from his family's house. Within a year and a half, the victim's parents owed the Academy just under $500 for unpaid dormitory fees. Those unpaid fees prevented him from continuing to attend the Academy. In 1998, two of the victim's ballet teachers introduced Kenneth Schneider, an American lawyer who had lived in Moscow for many years, to the victim and his family. Schneider had previously been financially generous in supporting artists in Russia. The teachers told Schneider about the victim's circumstances, and Schneider indicated that he might be able to help.

One day that summer, Schneider and the instructors went to the victim's house for a ballet demonstration. During the demonstration, one of the teachers commented to Schneider that the victim was very talented. After subsequent meetings, Schneider agreed to financially assist the victim's parents so that the victim could pursue further ballet studies at the Academy. Schneider proposed to pay for the victim's studies and housing, and extended the victim's father a loan to pay the delinquent dormitory fees. Schneider, with the victim's parents' permission, had the victim live at his Moscow apartment, close to the Academy. The victim was twelve years old when he began living with Schneider during the week.

At some point, Schneider began engaging in sexual activity with the victim. As of August 2000, Schneider and the victim were engaging in oral sex on Schneider's bed approximately three times per week. Thereafter, Schneider and the victim moved to a second apartment near the Academy. At this point, Schneider and the victim were also engaging in anal sex, with sexual activities occurring approximately three to four times per week. Near this time, a school nurse examined the victim. Schneider told the victim that if the nurse asked questions about the condition of the victim's anus, the victim should tell her that he had been using a solid stick of hemorrhoid

medication. Schneider told the victim that if anyone discovered their sexual activity, Schneider would go to jail and the victim would not achieve his goals of becoming a famous ballet dancer or going to America. Around this time, Schneider showed the victim a movie about a famous male ballet dancer and his older male mentor and lover, and compared their relationship to the one in the film.

In 2001, when the victim was fifteen, he, with assistance from Schneider, applied to and was accepted into a summer ballet program in Philadelphia. The victim's parents agreed to let him attend. The victim and Schneider traveled together to Philadelphia, where the victim resided at Schneider's parents' home while attending the program. Schneider did not stay in Philadelphia the entire time, as he was traveling for work. During this time in the United States, Schneider and the victim held hands, hugged, and kissed on the lips, but no oral or anal sex occurred. On August 22, 2001, Schneider and the victim returned together to Moscow.

Upon their return, the victim returned to living at Schneider's apartment, and Schneider and the victim resumed engaging in oral and anal sex. When the victim was sixteen, Schneider and the victim moved to Massachusetts, where the victim attended school and danced professionally. In 2008, the victim filed a civil complaint against Schneider and members of Schneider's family, among others, alleging that Schneider had sexually abused the victim for years.

That civil suit was stayed in December 2009 when Schneider was charged in a criminal complaint. In January 2010, a federal grand jury returned an indictment against Schneider, charging him with traveling in foreign commerce for the purpose of engaging in illicit sexual conduct with another person, in violation of 18 U.S.C. § 2423(b) (2000), and transporting an individual in foreign commerce with intent that such individual engage in a sexual activity for which any person can be charged with a criminal offense, in violation of 18 U.S.C. § 2421 (2000). These charges related to the victim and Schneider's travel from Philadelphia to Moscow on August 22, 2001. On March 27, 2010, Schneider was arrested in Cyprus. After two days in custody, he was released on bail, and subsequently returned to custody just under two months later, on May 17, 2010. On May 28, 2010, Schneider was brought to the Federal Detention Center in Philadelphia, remaining there through his trial.

The trial commenced on September 21, 2010. On October 1, 2010, a jury found Schneider guilty on both counts. Schneider subsequently moved for a judgment of acquittal, which the District Court granted as to the § 2421 count, but not the § 2423(b) count. Schneider was sentenced on December 1, 2011, to the statutory maximum fifteen years' incarceration, in addition to three years' supervised release, a $20,000 fine, and $35,000 in restitution. Schneider timely appealed. On August 12, 2012, Schneider filed a timely motion for a new trial based on newly-discovered evidence. The District Court denied this motion on February 15, 2013, and Schneider timely appealed. Those appeals have been consolidated before us.

II.

The District Court had jurisdiction pursuant to 18 U.S.C. § 3231. This Court has jurisdiction pursuant to 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291.

III.

Schneider raises six issues on appeal. First, did the District Court err when it denied Schneider's motion for a judgment of acquittal for his conviction under 18 U.S.C. § 2423(b) ? Second, did the District Court err when it denied Schneider's motion to dismiss the indictment as barred by the statute of limitations? Third, did the District Court abuse its discretion in ruling evidence of Schneider's pretrial incarceration inadmissible? Fourth, did the District Court abuse its discretion in admitting excerpts of and testimony regarding a film into evidence? Fifth, did the District Court abuse its discretion when it did not grant a motion for a new trial based on newly-discovered evidence? Finally, did the District Court err when it invoked a Sentencing Guidelines cross-reference to calculate Schneider's final offense level? We consider each issue in turn.

A.

Schneider, in a post-trial motion, sought a judgment of acquittal on both counts. App. at 18. The District Court granted this motion in part, writing that the “innocent round trip” exception established in Mortensen v. United States, 322 U.S. 369, 64 S.Ct. 1037, 88 L.Ed. 1331 (1944), a prosecution under the Mann Act, ch. 395, 36 Stat. 825 (1910) (codified as amended at 18 U.S.C. §§ 2421 –2424 (2012) ), applied to the 18 U.S.C. § 2421 conviction. It went on to deny Schneider a judgment of acquittal in connection with his conviction under 18 U.S.C. § 2423(b), stating that the Mortensen exception did not apply to that conviction. Schneider appeals the latter ruling.

“An appeal from a denial of a motion for judgment of acquittal is subject to [de novo] review, where the question is one of statutory interpretation.” United States v. Schneider, 14 F.3d 876, 878 (3d Cir.1994). We will affirm if “after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.”

United States v. Caraballo–Rodriguez, 726 F.3d 418, 424–25 (3d Cir.2013) (en banc) (internal quotation marks omitted).

1. Mann Act precedent's application to 18 U.S.C. § 2423(b)

Schneider argues on appeal that application of the “innocent round trip” exception, first set out in Mortensen, should result in a reversal of the District Court's denial of his motion for a judgment of acquittal on the § 2423(b) charge. Whether Mann Act precedent applies to prosecutions under § 2423(b) is an issue of first impression in this Circuit.

“The statutory antecedents of § 2423(b) date back to the Mann Act, enacted in 1910. Section 2423 evolved from the same legislative initiative as the Mann Act, and both are ... components of the same general legislative framework.” United States v. Garcia–Lopez, 234 F.3d 217, 220 n. 3 (5th Cir.2000) (citation omitted). “Section 2421 is the original Mann Act, as amended in minor respects.... Section 2423(b), the provision under which the defendant was prosecuted, was added to expand the protection of minors still further; it punishes travel in interstate commerce even if no minor is transported, if the purpose of the travel is sex with a minor.”United States v. McGuire, 627 F.3d 622, 624 (7th Cir.2010).

In 1997, the Seventh Circuit noted that “[j]udicial interpretations of the Mann Act necessarily color our reading of § 2423(b).” United States v. Vang, 128 F.3d 1065, 1069 (7th Cir.1997). It concluded that:

[Section] 2423(b) and the Mann Act are part of the same general legislative framework. More importantly, the crucial language of § 2423(b) employs the

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