United States of America v. Scott Hayward

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PRECEDENTIAL
UNITED STATES
COURT OF APPEALS
FOR THE THIRD CIRCUIT
__________
No. 02-4540
__________
UNITED STATES OF AMERICA
v.
SCOTT HAYWARD,
Appellant
__________
On Appeal from the United States
District Court
for the Western District of Pennsylvania
Criminal Action No. 02-cr-00063
District Judge: Honorable Alan N. Bloch
__________
Argued December 11, 2003
___________
Before: AMBRO, FUENTES, and
GARTH, Circuit Judges
(Opinion Filed: March 5, 2004)
OPINION
__________
Shelley Stark
Karen Sirianni Gerlach (Argued)
Michael J. Novara
Renee Pietropaolo
Lisa B. Freeland
Office of the Federal Public Defender
1001 Liberty Avenue
1450 Liberty Center
Pittsburgh, Pennsylvania 15222
Attorneys for Appellant,
Scott Hayward
Mary Beth Buchanan
Kelly R. Labby (Argued)
Bonnie R. Schlueter
Office of the United States Attorney
700 Grant Street
Suite 400
Pittsburgh, Pennsylvania 15219
Attorneys for Appellee,
United States of America
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

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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
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
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
2 Hayward claims he blacked out
after returning to the hotel. The
testimony which appears of record is
therefore the testimony of the
cheerleaders.

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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
3 18 U.S.C. § 2423 provides in
relevant part: Transportation of minors
(a) Transportation with intent to
engage in criminal sexual activity
– A person who knowingly
transports an individual who has
not attained the age of 18 years in
interstate or foreign commerce, or
in any commonwealth, territory or
possession of the United States,
with intent that the individual
engage in prostitution, or in any
sexual activity for which any
person can be charged with a
criminal offense, or attempts to do
so, shall be fined under this title,
imprisoned not more than 15
years, or both.
18 U.S.C. § 2246(2) defines
“sexual act” as:
(A) contact between the penis and the
vulva or the penis and the anus,
and for purposes of this
subparagraph contact involving
the penis occurs upon penetration,
however, slight;
(B) contact between the mouth and
the penis, the mouth and the
vulva, or the mouth and the anus;
(C) the penetration, however slight, of
the anal or genital opening of
another by a hand or finger or by
any object, with an intent to
abuse, humiliate, harass, degrade,
or arouse or gratify the sexual
desire of any person; or
(D) the intentional touching, not
through the clothing, of the
genitalia of another person who
has not attained the age of 16
years with an intent to abuse,
humiliate, harass, degrade, or
arouse or gratify the sexual desire
of any person[.]
4 18 U.S.C. § 2421 provides:
Transportation generally.
Whoever knowingly transports any
individual in interstate or foreign
commerce, or in any Territory or
Possession of the United States, with
intent that such individual engage in
prostitution, or in any sexual activity for
which any person can be charged with a
criminal offense, or attempts to do so,
shall be fined under this title or
imprisoned not more than 10 years, or
both.

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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
5 We have reproduced the text of
U.S.S.G. §§ 2A3.1-2A3.4 in our
analysis, infra. Accordingly, we do not
include those Guidelines here.

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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
of a defendant in a criminal case and
from stating an opinion or inference as to
whether the defendant had the mental
state constituting an element of the crime
charged. Hayward contends that
Lanning’s testimony effectively removed
the determination of Hayward’s intent
from the jury, in violation of Rule
704(b).
We have held that under Rule
704(b) “expert testimony is admissible if
it merely supports an inference or
conclusion that the defendant did or did
not have the requisite mens rea, so long
as the expert does not draw the ultimate
inference or conclusion for the jury and
the ultimate inference or conclusion does
not necessarily follow from the
testimony.” United States v. Bennett,
161 F.3d 171, 185 (3d Cir. 1998)
(quoting United States v. Morales, 108
F.3d 1031, 1038 (9th Cir. 1997))
(internal quotations omitted).
6 In its response to Hayward’s
motion in limine concerning Lanning’s
testimony, the Government stated that
“Mr. Lanning is not going to answer
hypothetical questions about Scott
Hayward’s intent . . . .”
7 Lanning testified that he had
been an FBI agent for 30 years, he had
been a Supervisory Special Agent in the
FBI’s Behavioral Sciences Unit for 20
years, he was a founding member of the
American Professional Society on the
Abuse of Children, he was the author of
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
case, in which Lanning qualified as an
expert and in which he testified under
circumstances similar to those in this
case, Lanning’s testimony was admitted
and upheld against a Rule 704(b) attack
identical to Hayward’s attack here. See
United States v. Romero, 189 F.3d 576
(7th Cir. 1999). In Romero, Lanning
was only permitted to testify to “the
methods and techniques employed by
preferential child molesters. The
prosecution would not ask Lanning to
give his opinion about Romero or to
comment about his intent or culpability.”
Id. at 582. On redirect examination,
however, the
prosecution posed a series
of hypothetical actions to
Lanning and asked him if
these actions would indicate
someone who would act on
his sexual fantasies about
children . . . [T]he
hypotheticals described
actions taken by Romero
that had already been
produced in evidence[.]
Id. at 584. The Seventh Circuit held that
Lanning’s responses did not violate Rule
704(b) because “[h]is testimony did not
amount to a statement of his belief about
what specifically was going through
Romero’s mind when he met [the
victim].” Id. at 586.
In this case, Lanning’s testimony
elucidated the motives and practices of
an acquaintance molester. His testimony
was admissible under Rule 704(b)
because, as in Romero, Lanning “never
directly opined as to [Hayward’s] mental
state when he [returned to the hotel room
with the cheerleaders].” Id. at 586.
Rather, Lanning “focused primarily on
the modus operandi – on the actions
normally taken by child molesters to find
and seduce their victims.” Id. He drew
no conclusion as to Hayward’s intent.
Thus, his testimony is admissible under
Rule 704(b).
We review a district court’s
decision to admit or exclude expert
testimony for abuse of discretion.
United States v. Watson, 260 F.3d 301,
306 (3d Cir. 2001); Bennett, 161 F.3d at
182. The District Court properly
exercised its discretion in admitting
Lanning’s testimony.
2.
Hayward next argues that the tape
recorded statements of Scotland Yard
investigators questioning Hayward were
improperly admitted and played for the
jury, because they violated Federal Rule
of Evidence 403.8 Hayward claims on
8 Rule 403 allows the exclusion of
otherwise relevant evidence if its
probative value is substantially
outweighed by the danger of unfair
prejudice, confusion of the issues, or
misleading the jury, or by considerations
of undue delay, waste of time, or

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appeal that the tapes, which contained
Hayward’s statements to Scotland Yard
investigators, were prejudicial under
Rule 403 because they allowed the
investigators to testify without taking the
stand or being subject to cross-
examination. However, the record
reveals that the Scotland Yard detectives
who questioned Hayward on the tape
were present in court and even testified
on behalf of the Government at
Hayward’s trial.
The contents of the tapes were
clearly probative of the facts surrounding
the crime charged. Hayward’s taped
statements revealed his whereabouts on
the night of April 12, 2000, his reason
for being in London with the
cheerleaders, and his custody of and
control over the cheerleaders during the
trip. The tapes contain no evidence as to
Hayward’s criminal sexual intent, as he
maintained during the questioning that
he had no memory of the event. The
District Court did not abuse its discretion
in admitting the tapes into evidence.
3.
Next, Hayward argues on appeal
that 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 the trip to England in order
to convict Hayward. The District Court
charged the jury:
It is not necessary for the
government to prove that
the illegal sexual activity
was the sole purpose for the
transportation. A person
may have several different
purposes or motives for
such travel, and each may
prompt in varying degrees
the act of making the
journey. The government
must prove beyond a
reasonable doubt, however,
that a significant or
motivating purpose of the
travel across state or
foreign boundaries was to
h a v e the in d i v i d u a l
transported engage in
illegal sexual activity. In
other words, the illegal
sexual activity must have
not been merely incidental
to the trip.
App. Vol. IV p. 893 at 16:7-16
(emphasis added).
At trial, Hayward argued that the
jury should be instructed to find that the
criminal sexual activity with which
Hayward was charged was “a dominant
purpose” of his trip to England. The
District Court Judge instead charged the
jury that the criminal sexual activity had
to be “a significant or motivating
purpose” of Hayward’s trip to England.
needless presentation of cumulative
evidence.

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On appeal, Hayward’s argument has
changed. He now argues that the
District Court Judge should have used
the words “the dominant purpose” in the
jury charge. Hence, the charge that
Hayward argues for on appeal is
substantially different from the charge
that Hayward requested at trial, raising a
serious question as to whether this issue
has been preserved. We do not rest our
position on preservation, however.
Hayward points to no case in
which any Court of Appeals required a
jury instruction that criminal sexual
activity must be the dominant purpose of
interstate travel to support a conviction
under 18 U.S.C. § 2423(a).9 The
Government relies on decisions by the
First, Second, Fifth, Sixth, Seventh and
Tenth Circuits, in which criminal sexual
activity was one of a number of multiple
motives for interstate travel. Those
courts declined to reverse convictions
where the respective district court had
refused or failed to give “the dominant
purpose” jury instruction that Hayward
now requests. See United States v.
Garcia-Lopez, 234 F.3d 217, 220 (5th
Cir. 2000); United States v. Vang, 128
F.3d 1065, 1072 (7th Cir. 1997); United
States v. Meacham, 115 F.3d 1488, 1495
(10th Cir. 1997); United States v. Sirois,
87 F.3d 34, 39 (2d Cir. 1996); United
States v. Campbell, 49 F.3d 1079, 1082-
83 (5th Cir. 1995); United States v. Ellis,
935 F.2d 385, 389-90 (1st Cir. 1991);
United States v. Snow, 507 F.2d 22, 24
(7th Cir. 1974); United States v. Harris,
480 F.2d 601, 602 (6th Cir. 1973). Of
these authorities, United States v. Vang
was the case relied upon by the District
Court Judge in Hayward’s case.
In Vang, the defendants
repeatedly raped underage girls during
the course of an interstate car trip, and
they were charged under the Mann Act
and 18 U.S.C. § 2243(b). The District
Court instructed the jury that the
government need not prove “that a
criminal sexual act was the sole purpose
for a defendant traveling from one state
to another, but the government must
prove that it was a dominant purpose, as
opposed to an incidental one,” and
denied the defendants’ request to require
a finding that a criminal sexual act was
the dominant purpose of the trip. 128
F.3d at 1069 (italics added). The
Seventh Circuit affirmed. Similarly in
this case, the District Court’s charge that
“a significant or motivating purpose of
the travel across state or foreign
boundaries was to have the individual
transported engage in illegal sexual
activity. In other words, the illegal
sexual activity must not have been
merely incidental to the trip” was not in
error.
9 Hayward cites United States v.
Mortensen, 322 U.S. 369 (1944), and
Hansen v. Haff, 291 U.S. 559 (1934), in
support of his position, but those cases,
which do not involve multiple motives
for interstate travel, are inapposite.

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III.
We now turn to Hayward’s
arguments concerning his criminal
sentence.
1.
First, Hayward argues that the
District Court Judge improperly
sentenced him for attempted criminal
sexual abuse of V-14 under U.S.S.G.
§ 2A3.1. Hayward claims that the
evidence supports only a sentence under
U.S.S.G. § 2A3.4 for criminal sexual
contact with V-14.10
Hayward was convicted of
violating 18 U.S.C. § 2423(a)
(transportation of a minor with intent to
engage in criminal sexual activity) based
upon his actions with V-14 and V-15.
The corresponding Guideline for a
violation of § 2423(a) is U.S.S.G.
§ 2G1.1.11 Under that Guideline, the
10 A District Court’s choice of
sentencing guidelines is subject to
plenary review. United States v. Diaz,
245 F.3d 294, 300 (3d Cir. 2001);
United States v. Smith, 186 F.3d 290,
297 (3d Cir. 1999).
11 § 2G1.1. Promoting A
Commercial Sex Act or Prohibited
Sexual Conduct
* * *
(c) Cross References:
(1) If the offense involved
causing, transporting,
permitting, or offering or
seeking by notice or
advertisement, a person
less than 18 years of age to
engage in sexually explicit
conduct for the purpose of
producing a visual
depiction of such conduct,
apply § 2G2.1 . . . .
(2) If the offense involved
criminal sexual abuse,
attempted criminal sexual
abuse, or assault with
intent to commit criminal
sexual abuse, apply §
2A3.1 (Criminal Sexual
Abuse; Attempt to Commit
Criminal Sexual Abuse). If
the offense involved
criminal sexual abuse of a
minor who had not attained
the age of 12 years, §
2A3.1 shall apply,
regardless of the ‘consent’
of the victim.
(3) If the offense did not
involve promoting a
commercial sex act, and
neither subsection (c)(1)
nor (c)(2) is applicable,
apply § 2A3.2 (Criminal
Sexual Abuse of a Minor
Under the Age of Sixteen
Years (Statutory Rape) or
Attempt to Commit Such
Acts) or § 2A3.4 (Abusive
Sexual Contact or Attempt
to Commit Abusive Sexual

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sentencing judge may select among
U.S.S.G. § 2A3.1 (Criminal Sexual
Abuse), § 2A3.2 (Statutory Rape), or
§ 2A3.4 (Abusive Sexual Contact), as
appropriate. The District Court Judge
acknowledged this, and he also
recognized that sexual abuse offenses are
treated more seriously than are sexual
contact offenses.
In selecting the sentencing
guideline, the District Court Judge
examined §§ 2A3.1, 2A3.2, and 2A3.4.
As Hayward does not contest the District
Court’s determination that § 2A3.2
(statutory rape) was inapplicable, we will
not address that section of the Guidelines
here.
Section 2A3.1 applies when a
defendant engages in or attempts to
engage in criminal sexual abuse, which
is defined as “knowingly engag[ing] in a
sexual act with another person who (1)
has attained the age of 12 years but has
not attained the age of 16 years; and (2)
is at least four years younger than the
person so engaging[.]” 18 U.S.C.
§ 2243(a). As noted above, “sexual act”
is defined as:
(A) contact between the
penis and the vulva
or the penis and the
a n u s , a n d f o r
purposes of this
subparagraph contact
involving the penis
o c c u r s u p o n
p e n e t r a t i o n ,
however, slight;
(B) contact between the
mouth and the penis,
the mouth and the
vulva, or the mouth
and the anus;
(C) t h e p e n e t r a t i o n ,
however slight, of
the anal or genital
opening of another
by a hand or finger
or by any object,
with an intent to
abuse, humiliate,
harass, degrade, or
arouse or gratify the
sexual desire of any
person; or
(D) t h e i n t e n t i o n a l
t o u c h i n g , n o t
through the clothing,
of the genitalia of
another person who
has not attained the
age of 16 years with
an intent to abuse,
humiliate, harass,
degrade, or arouse or
gratify the sexual
d e s i r e o f a n y
person[.]
18 U.S.C. § 2246(2).Contact), as
appropriate.

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Section 2A3.4 applies when a
defendant engages in or attempts to
engage in abusive sexual contact.
According to the Guidelines, “[t]his
section covers abusive sexual contact not
amounting to criminal sexual abuse.”
U.S.S.G. § 2A3.4 cmt. Sexual contact
here is defined as “the intentional
touching, either directly or through the
clothing, of the genitalia, anus, groin,
breast, inner thigh, or buttocks of any
person with an intent to abuse, humiliate,
harass, degrade, or arouse or gratify the
sexual desire of any person[.]” 18
U.S.C. § 2246(3).
The District Court Judge explored
the distinction between § 2A3.1 and
§ 2A3.4, and observed that “if the
defendant’s criminal conduct amounted
to sexual “contact” or attempted sexual
“contact”, as opposed to a sexual “act” or
attempted sexual “act”, this Guideline
[§2A3.4] governs.”12
The Presentence Investigation
Report (“PSIR”) recommended that
Hayward be sentenced as to both V-14
and V-15 under § 2A3.4 for abusive
sexual contact. PSIR pp. 7-8. The
District Court Judge agreed that Hayward
had committed sexual contact with V-15
when he touched her breasts. As to V-
14, however, he determined that
Hayward had committed an attempted
sexual abuse by pushing her head toward
his penis, thereby attempting to engage in
oral sex with her. Hayward argued prior
to the sentencing determination that he
could not have taken the requisite
substantial step toward oral sex with V-
14 because, according to the trial
testimony, he was clothed when he
pushed her head down toward his penis.
In response, the District Court Judge
wrote:
Although the Court agrees
that it may be inferred from
V -1 4's testimony that
defendant’s pants were still
on when he tried to push her
head toward his penis, the
e v i d e n c e n o n e t h e l e s s
establishes by clear and
convincing evidence that the
defendant, in starting to
push V-14's head toward his
penis, was attempting to
12 The parties dispute the required
standard of proof at sentencing. The
Government argues that it must – and
did – establish attempted criminal sexual
abuse by a “preponderance of the
evidence.” Hayward, relying on United
States v. Kikumura, 918 F.2d 1084 (3d
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
necessary for us to determine which
standard applies in this case. Under
either standard, it is evident from the
record that Hayward should have been
sentenced for abusive sexual contact,
and not for attempted criminal sexual
abuse.

-- 12 of 21 --

-13-
have her perform oral sex on
him.
App. Vol. I p. 23.
Hayward correctly points out that
the District Court Judge did not define
what constitutes an attempt to commit a
sexual act. The ambiguous and
equivocal act of pushing a victim’s head
toward one’s clothed penis does not meet
any definition of a “sexual act” as
defined in 18 U.S.C. § 2246(2) and does
not constitute a substantial step toward
achieving “contact between the mouth
and the penis” under 18 U.S.C.
§ 2246(2)(B).
The term “contact” is the
controlling term set forth in § 2246 for
each of the “sexual acts” that are defined.
In each section, the statute requires
“contact between the penis and the vulva
or the penis and the anus,” § 2246(2)(A),
and “contact between the mouth and the
penis, the mouth and the vulva, or the
mouth and the anus,” § 2246(2)(B).
“Contact” is defined as “a union or
junction of body surfaces: a touching or
meeting,” Webster’s Third New
International Dictionary 490 (1st ed.
1966), and “the act or state of touching; a
touching or meeting of two things,” The
Random House College Dictionary 289
(rev. ed. 1980).
Those definitions, and the use of
the term “contact” in the relevant
sections of the statute to which we have
just referred, are plain and explicit: they
require the actual touching, a meeting of
body surfaces. See United States v.
Knox, 977 F.2d 815, 818 (3d Cir 1992)
(“It is axiomatic that when the statutory
language is clear, the words must be
interpreted in accordance with their
ordinary meaning.”). We therefore
interpret the statutory definition of a
“sexual act” under § 2246(2), which in
this case speaks of contact between the
penis and the mouth, to require direct
skin-to-skin contact or touching of body
parts.13 In contrast to the term “sexual
act,” which requires skin-to-skin
13 We are aware that other courts,
which have sentenced defendants under
18 U.S.C. § 2422(b) (coercion and
enticement), have interpreted an
attempted “sexual act” pursuant to 18
U.S.C. § 2246(2) as apparently not
requiring skin-to-skin contact. See, e.g.,
United States v. Panfil, 338 F.3d 1299
(11th Cir. 2003); United States v.
Miranda, 348 F.3d 1322 (11th Cir.
2003); United States v. Payne, 77 Fed.
Appx. 772 (6th Cir. 2003); United States
v. Bailey, 228 F.3d 637 (6th Cir. 2000).
We do not accept the analysis of those
courts as they pertain to the evidence and
violation in this case, particularly as
those cases were decided in the context
of internet “chat room” crimes. We
express no opinion here as to what our
interpretation of “sexual act” would be if
we were confronted with a challenge to a
sentence rendered after an internet “chat
room” conviction pursuant to 18 U.S.C.
§ 2224(b).

-- 13 of 21 --

-14-
touching and which led to the sentencing
of Hayward for committing sexual abuse,
the controlling term of 18 U.S.C. §
2246(3) is “sexual contact,” where the
touching could occur either directly or
through the clothing. Section 2246(3)
refers explicitly to “the intentional
touching, either directly or through the
clothing,” of the victim. 18 U.S.C.
§ 2246(3) (emphasis added). In this
case, therefore, where the evidence is
that V-14's mouth could not have
touched Hayward’s penis because
Hayward’s trousers were between her
mouth and his penis – he could only have
been sentenced to sexual contact, and not
sexual abuse.
The record here discloses no
evidence that Hayward’s penis was
exposed when he pushed V-14's head
down. V-14's testimony is clear – at the
time the “pushing” occurred, Hayward
was trousered. It was not until some
time later that Hayward’s trousers were
removed. This evidence, and the record
as a whole, does not show that
Hayward’s act in pushing V-14's head
toward his clothed penis constituted an
attempt to achieve direct skin-to-skin
contact. V-14's trial testimony is
reproduced in the margin,14 and at the
very least is compelling evidence from
which a fact-finder could only infer that
he was clothed at that time.
As we review the record, the facts
recited by V-14 support only a sentence
for abusive sexual contact under
U.S.S.G. § 2A3.4. Not surprisingly, this
was also the Guideline originally
suggested by the Probation Office for
sentencing as to V-14. These facts
14 V-14 testified as follows:
[Hayward] took the back of
my head and started pushing
my head toward his penis.
And I kicked the bed out
because they were rolling
beds and [I] rolled in
between the beds. . . . And
he took one arm and he
scooped me back up onto
the bed. . . . Then he told
[V-18] to go get the dresser
and move it beside the bed
so that the beds wouldn’t be
able to be pushed out. And
she got up and started
moving the dresser and he
told her to get back on the
bed, and she got back on the
bed and I looked at her and
her shirt was off. And then
he took mine and [V-18]’s
wrists again and this time
his pants were off. And he
put them on his penis and
started moving up and
down. And he took my
shoulder and started moving
it up and down, pushing up
and down. Then he said
faster, faster, faster. Then
he ejaculated and appeared
to fall asleep. . . .

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-15-
satisfy the definition of sexual contact
under 18 U.S.C. § 2246(3), thereby
requiring us to remand to the District
Court for re-sentencing under U.S.S.G.
§ 2A3.4.15
2.
Hayward’s other challenge to his
sentence is his claim that the District
Court improperly considered the
cheerleaders’ parents to be victims for
restitution purposes. Whether a parent is
entitled to restitution is a question of law
subject to plenary review. United States
v. Akande, 200 F.3d 136, 138 (3d Cir.
1999).
Hayward argues that the parents
of the cheerleaders should not be
considered victims for restitution
purposes. He urges that beyond the cost
of counseling for their children, all other
costs incurred by them should be
excluded from the restitution order. The
Government counters that under the
Mandatory Victims Restitution Act
(“MVRA”), 18 U.S.C. § 3663A, any
person directly and proximately harmed
is entitled to restitution, and a parent may
assume a child’s restitution rights. In
addition, the Government argues, parents
are entitled under the MVRA to
restitution for costs incurred during the
investigation and prosecution of the
action. Id. at § 3663A(b)(4).
The District Court correctly
concluded that the cheerleaders’ parents
are entitled to restitution under the
MVRA. They incurred reasonable costs
in obtaining the return of their
victimized children from London and in
making their children available to
participate in the investigation and trial.
The restitution order will therefore be
affirmed.
IV.
In all respects other than the
District Court’s 15-year sentence of
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
judgment of conviction and the sentence
of restitution. With respect to the 15-
year sentence of Hayward, we will
reverse and remand for re-sentencing
pursuant to the sexual contact provisions
of 18 U.S.C. § 2423(a) and U.S.S.G. §
2A3.4.
Fuentes, Circuit Judge, concurring in
part, dissenting in part:
I join the majority with respect to
15 The Government points out that
the Probation Office later amended its
recommendations based upon its original
misapprehension of the age of the female
whose head Hayward pushed down
towards his clothed penis. We do not
find this significant, as the age of the
victim is not a factor in determining
whether a defendant committed a sexual
assault or sexual contact. Moreover, at
oral argument the Government
abandoned this argument.

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-16-
Part I, II, III(2) and IV. However, the
majority has determined that Scott
Hayward’s 15-year sentence for sexual
abuse, specifically attempted oral sex
with a minor, was rendered in error, and
that Hayward must be resentenced under
the more lenient sexual contact guideline.
The difference will be a reduction of
about 13 years and 23 levels.16 The
majority’s view is, essentially, that
Hayward could not have attempted
sexual abuse because 18 U.S.C. §
2243(a) and U.S.S.G § 2A3.1 require
actual contact, skin-to-skin, and since
Hayward had his pants on when he
pushed Julie's17 head toward his penis, he
could not have attempted oral sex. In my
view, whether Hayward had his pants on
or not is of no consequence.18 I believe
that under a plain reading of 18 U.S.C. §
2246(2)(A) and (B), a person can commit
an attempted sexual abuse not only
where there has been no physical contact
of any kind, but, as determined by a
number of our sister circuits, even where
the person never meets the intended
victim. I disagree that the District Court
applied the wrong guideline and
therefore I respectfully dissent in regard
to Part III(1).
Before discussing the statutory
language, I think it is important to review
the factual record. The sexual act here
was no chance encounter. Hayward was
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
activity, in violation of 18 U.S.C. § 16Under U.S.S.G. § 2A3.1,
Hayward’s base offense level was 27.
His final adjusted offense level of 37
produces a sentencing range of 235 to
293 months. Because that range exceeds
the statutory maximum of 15 years, he
was sentenced by the District Court to 15
years imprisonment and a 3-year term of
supervised release. Upon remand,
Hayward will be sentenced under
U.S.S.G § 2A3.4, with a base offense
level of 10. His final adjusted offense
level of 14, produces a guideline range
of 18 to 24 months.
17I refer to the minor victims,
identified as V-15 and V-18 in the
majority opinion, by their first names, as
is done in the parties’ briefs.
18The girls’ testimony is not clear
or consistent on this point. There is
some testimony in the record from which
it may be inferred that his pants were in
fact off. In testimony the court found
fully credible, Tracy stated:
He undid his own pants and
pulled out his penis. At that
point I know Julie fell off the
bed at one point, I am not sure
whereabouts that was, and he
pulled her back up onto the
bed...and at one point I know
he tried to push Julie’s head
down to his penis to give him
oral sex. She pulled away.

-- 16 of 21 --

-17-
2423(a). The evidence made clear that
Hayward cultivated a sexualized
relationship with the cheerleaders under
his tutelage and intended all along to be
alone with the minors while in London.
He coined sexually explicit nicknames
for some of the girls, such as “Doggie
Style” and “Penis” and made a practice
of discussing sex with them. One
cheerleader testified, for example, that he
recounted stories of how female
cheerleaders often had sex with male
recruits in order to curry favor with them.
Although parent chaperones were often
present on team trips, Hayward
dissuaded parents from accompanying
them to London, assuring them that his
wife and another coach, Larry Guerrero,
would provide sufficient supervision. He
did not tell the parents that Guerrero and
Mrs. Hayward would only be joining the
group later. Once in London, the sexual
innuendo became explicit. Hayward
spent several late nights in the girls’
rooms, playing drinking games,
confiding in the girls about his sexual
experiences and proclivities and
inquiring into theirs. One game required
the girls to “talk about what you’ve done,
what you haven’t done with someone,
sexual positions, what you prefer,” and
Hayward told the girls his daughter had
been conceived on top of an
entertainment center in a hotel room.
Hayward staged and judged an “abs and
butt contest” between two of the girls,
touching both girls’ abs and butts to
determine whose were tighter.
According to testimony, he rewarded the
winner by tossing her on the bed and
“humping her.” Several girls testified
that Hayward touched and caressed them
throughout the trip, and on more than one
occasion would take a girl’s hand, shove
it into his pocket and “say something
like, oh, you’re feeling my thing.” On
the night in question, Hayward
encouraged Julie to wear make-up and a
revealing outfit and to keep her braces
covered to disguise her age, so that she
could join the group for their second
night of drinking at a nightclub.
That night, in bed with three of
the girls, Hayward removed Kelly’s shirt
and fondled her, grabbed Julie's head
and, “slamm[ing] [her] face into him,”
forced her to kiss him. He then grabbed
Tracy's hand, put it on his leg and tried to
force her to undo his pants. He grabbed
the girls’ hands and made them rub his
genitals and then grabbed the back of
Tracy's neck and “slammed her face into
his, forcing her to kiss him.” Julie
testified that at this point Hayward “took
the back of my head again and started
pushing my head down toward his penis.
And I kicked the bed out because they
were rolling beds and rolled down in
between the beds...absolutely terrified.”
She explained: “I thought that maybe I
would be able to get out, and I was
holding onto the bed and I just said don’t
touch me, just leave me here.” After
Hayward lifted her back onto the bed,
Julie fell away a second time, and
Hayward lifted her up again. Julie
testified that she could not remember
how many times during this period
Hayward pushed her head toward his

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-18-
penis. Finally, Hayward grabbed Tracy's
and Julie's wrists, masturbating himself
with their hands, saying “faster, faster,
faster” until he ejaculated on them and
appeared to fall asleep.
At trial, the jury heard the
testimony of Kenneth Lanning, who
described how acquaintance child
molesters develop seduction strategies
suited to their victims, gradually
lowering their victims’ inhibitions about
sex so as to solicit their complicity in
their own victimization. Hayward’s plan
for abusing his young victims was
hatched long before his conduct in the
bedroom and that conduct should
therefore not be viewed in isolation.
My colleagues emphasize that
“sexual act” as defined in § 2246
requires “contact between the mouth and
the penis” and therefore there has to be
“actual touching, a meeting of body
surfaces.” Thus, the majority concludes
that the act of pushing Julie’s head
toward his “clothed” penis is not a
substantial step taken towards
commission of a sexual act. The
majority’s repeated emphasis on
Hayward’s state of undress is misplaced
and misleading. I agree with my
colleagues that a “sexual act” can only be
accomplished by direct skin-to-skin
contact and therefore clearly requires
exposed skin. However, it has never
been alleged that Hayward successfully
perpetrated a “sexual act” on his young
victim. Rather, the District Court
sentenced him under § 2A3.1 for an
attempted sexual act. The law of attempt
is well-settled. An attempt is comprised
of two principal elements: (1) an intent to
engage in criminal conduct and (2) a
substantial step toward the commission
of the substantive offense which
corroborates that intent. See United
States v. Cruz-Jimenez, 977 F.2d 95,
101-02 (3d Cir. 1992). A “substantial
step” has been defined as something
more than mere preparation and less than
the last act necessary before commission.
U.S. v. Ledesma-Cuesta, 347 F.3d 527,
531 (3rd Cir. 2003), citing United States
v. Yousef, 327 F.3d 56, 134 (2d Cir.
2003), accord United States v. Manley,
632 F.2d 978, 987 (2d Cir. 1980). It
requires “some appreciable fragment of
the crime in progress.” United States v.
Hadley, 918 F.2d 848, 853 (9th Cir.
1990) (internal quotations and citations
omitted).
Hayward’s conduct here
unquestionably satisfies that definition.
Hayward was engaging in “mere
preparation” when he took the girls to
London on an unchaperoned trip, brought
them to a nightclub where they became
intoxicated, talked to them in
increasingly explicit terms about sex and
climbed into bed with them. Had he
then just kissed and fondled the girls,
undressed, and forced them to touch him,
those acts alone would not have
established his desire to have Julie
perform oral sex on him. However, the
District Court found, in an exhaustive,
fifty-page sentencing memorandum, that
Hayward went beyond that “preparation”

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-19-
and took a substantial step toward oral
sex, making his desires plain, when, after
trying to force Tracy to undress him, he
grabbed Julie's head and pushed it down
toward his penis. When Hayward’s
attempts were met with Julie's resistance,
he persisted, ignoring her protestations,
dragging her back onto the bed by one
arm and pushing her head down again.
Thwarted, Hayward resigned himself to
sexual gratification by other means.
My colleagues’ view, that
Hayward’s pushing Julie's head toward
his penis did not constitute a substantial
step toward achieving “contact between
the mouth and the penis” is untenable.
Even assuming he was still dressed at
this point, the only thing standing in the
way of successful completion of a sexual
act was a layer of fabric; the only step
remaining was for Hayward to unzip his
fly with his free hand, or coax Tracy or
Julie to do it for him, as he had tried to
earlier in the encounter. Hayward did
not commit this last act necessary to
complete the offense, perhaps because
his use of force was met with Julie's
resistance. Of course, if he had
succeeded, he would have committed
sexual abuse, not attempted it. In my
view, the majority essentially writes
attempt out of the statute, requiring not
only a substantial step towards the
commission of the offense, but
practically all the steps necessary. In
other words, the majority requires that
the path be clear of obstacles, and that
skin-to-skin contact be imminent and
certain.
The relevant cases from our sister
circuits clearly dictate the application of
the sexual abuse guideline in this case.
In some of these cases, the sexual abuse
guideline applied even when the victim
and her would-be abuser never met. In
United States v. Payne, the Sixth Circuit
held that the mere act of arriving for an
arranged meeting with a 14-year-old girl
constituted a “substantial step” sufficient
to find an attempted sexual act when the
defendant had been engaging in explicit
e-mail conversations with his future
victim, and sentenced the defendant
under U.S.S.G. § 2A3.1.19 77 Fed. Appx.
772, (6th Cir. 2003). In United States v.
Miranda, after an explicit online chat
with “claudia13x” in which having sex
was discussed and a meeting time and
place was established, Miranda was
arrested when he stopped his car in front
of claudia13x’s school and asked an
undercover agent the name of the school.
The Eleventh Circuit reversed with
instructions to apply the sexual abuse,
rather than the sexual contact, guideline
because it was clear from the evidence
that Miranda intended to engage in a
sexual act with the minor. 348 F.3d
1322, 1326-29 (11th Cir. 2003). See
19 Although it is not relevant to the
holding of either case, it is worth noting
that the “victims” in Payne, Miranda and
Panfil were entirely fictional. The
defendants were actually communicating
with FBI agents posing as young girls,
and their meetings were with undercover
agents.

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-20-
also, United States v. Panfil, 338 F.3d
1299 (11th Cir. 2003) (upholding a
sentence under U.S.S.G. 2A3.1 for a
defendant who was arrested when he
went to meet his intended victim whom
he had met on the internet).
In United States v. Cryar, the
Tenth Circuit upheld Cryar’s conviction
and sentencing under U.S.S.G. §2A3.1
when, after discussing his attraction to
young girls with a business associate and
expressing a desire to babysit that
associate’s six-year-old sister-in-law,
Cryar arrived at the Oklahoma zoo to
pick up the young girl. 232 F.3d 1318
(10th Cir. 2000). See also United States
v. Butler 92 F.3d 960 (9th Cir. 1996)
(applying guideline for attempted sexual
abuse when defendant was arrested
entering the room where he believed
children with whom he wanted to have
sex were waiting); United States v.
Hadley, 918 F.2d 848 (9th Cir. 1990)
(holding there was sufficient evidence to
support a finding of attempted sexual
abuse where defendant and victim
remained clothed, because evidence
made clear that defendant intended to
engage in a sexual act with the victim.)
These cases make it clear that a
defendant may be guilty of attempt even
where significant steps necessary to carry
out the substantive crime intended are
not completed. See also United States v.
Jackson, 560 F.2d 112, 120 (2d
Cir.1977). If an attempted sexual abuse
can be perpetrated when defendant and
victim are not about to have skin-to-skin
contact or are not even in the same room,
as the Sixth, Ninth, Tenth and Eleventh
Circuits have determined, it is clear that
whether Hayward had his pants on or off
is of no moment. The proper focus
should be on the aggressor’s intent, not
on how close, temporally or spatially, the
aggressor comes to achieving skin-to-
skin, mouth to penis contact. In other
words, we should focus on criminal
design, not possibility of performance.
Here, Hayward’s intent was clear. He
wanted to have Julie perform oral sex on
him, and, in pushing her head toward his
penis, he committed a substantial step in
furtherance of that criminal design.
Cruz-Jimenez, 977 F.2d at 102. The
majority’s implication that Hayward’s
intent could not be inferred from his
actions because he was “trousered” is
unsupportable. In the course of a
premeditated and carefully orchestrated
sexual encounter with three young girls
in his care, with sexual desire evident
and the ultimate goal of sexual
gratification clearly in mind, Hayward
forcefully pushed Julie's head toward his
penis. It is certainly reasonable to infer,
as Tracy did, that Hayward intended for
Julie “to give him oral sex” and that he
would have completed the attempt by
unzipping his pants, had Julie not kicked
and pulled away. To me, Hayward’s
conduct clearly constitutes attempted
sexual abuse.
After engaging in a lengthy
sentencing process, hearing the girls’
testimony at sentencing, meticulously
reviewing the facts with a clear

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-21-
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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