Mr Hayward is here for better sex

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Novara, Renee Pietropaolo, Lisa B. Mary Beth Buchanan, Kelly R. Labby ArguedBonnie R. 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. We will affirm Hayward's conviction, but we will remand the case to the District Court for re-sentencing.

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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 JanuaryPCC and other teams were invited to take part in the World Cheerleading Association's "World Tour of Champions" to be held on April, which involved a tour of Europe and a national competition. V, V and V, 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.

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He also said that "whatever happened in London would stay in London. 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 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, V and V shared one room, and the other three girls shared an ading room.

On the night of April 12,Hayward took the girls to a nightclub in London where they drank alcohol. The group returned to the hotel room in which the year olds and the year-old were staying. Hayward stated to another girl: "Babe, I'm sleeping with you tonight.

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Both of the year-olds and the year old also fell asleep, at which point Hayward awoke and announced that he was going to sleep in the ading room shared by V, V and V Once inside the ading room, Hayward directed V, V and V to push two of the three single beds together. V and Hayward lay down on the beds, and V jumped on Hayward and then rolled off to one side.

V then ed the others on the bed. At this point, V and V were lying to one side of Hayward, and V was on his other side. The precise order of events thereafter is unclear. Initially, Hayward pulled down V's shirt and fondled her breasts.

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V 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, Hayward pulled V's face toward his and forced her to kiss him. The ificant testimony concerning the sequence of events that took place that evening was V's. She testified that Hayward pushed her head toward his penis.

Some time later, he removed his trousers and placed V's and V'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 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, V and V, and performed tests on semen samples found on the clothing worn by V and V 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 Mr Hayward is here for better sex 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. 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 ificant or motivating" — purpose of Hayward's trip to England; 4 Hayward should have been sentenced for criminal sexual contact under U.

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. As a result, Hayward's fifth claim downward departure is moot.

Finally, we reject Hayward's sixth claim restitutionand will affirm the District Court's restitution order. 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. 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. 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 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 b. We have held that under Rule b "expert testimony is admissible if it Mr Hayward is here for better sex 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.

BennettF. MoralesF. 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 b attack identical to Hayward's attack here. See United States v. RomeroF. In RomeroLanning 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. On redirect examination, however, the. The Seventh Circuit held that Lanning's responses did not violate Rule 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].

In this case, Lanning's testimony elucidated the motives and practices of an acquaintance molester. His testimony was admissible under Rule b because, as in RomeroLanning "never directly opined as to [Hayward's] mental state when he [returned to the hotel room with the cheerleaders]. Rather, Lanning "focused primarily on the modus operandi — on the actions normally taken by child molesters to find and seduce their victims. He drew no conclusion as to Hayward's intent. Thus, his testimony is admissible under Rule b.

We review a district court's decision to admit or exclude expert testimony for abuse of discretion. United States v. WatsonF. The District Court properly exercised its discretion in admitting Lanning's testimony. 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 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,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. 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 ificant 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 ificant 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 have not been merely incidental to the trip. At trialHayward 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 ificant or motivating purpose" of Hayward's trip to England. On appealHayward'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. Those courts declined to reverse convictions where the respective district court had refused or failed to give " Mr Hayward is here for better sex dominant purpose" jury instruction that Hayward now requests.

Garcia-LopezF. VangF. MeachamF. Sirois87 F. Campbell49 F. EllisF. SnowF. HarrisF. Of these authorities, United States v.

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Vang was the case relied upon by the District Court Judge in Hayward's case. In Vangthe defendants repeatedly raped underage girls during the course of an interstate car trip, and they were charged under the Mann Act and 18 U. 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.

The Seventh Circuit affirmed. Similarly in this case, the District Court's charge that "a ificant 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. First, Hayward argues that the District Court Judge improperly sentenced him for attempted criminal sexual abuse of V under U.

Hayward claims that the evidence supports only a sentence under U. Hayward was convicted of violating 18 U. The District Court Judge acknowledged this, and he also recognized that sexual abuse offenses are treated more seriously than are sexual contact offenses. Section 2A3. As noted above, "sexual act" is defined 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.

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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 [.

Mr Hayward is here for better sex

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United States of America v. Scott Hayward, Appellant, F.3d (3d Cir. )