United States v. Kenneth Schneider , 801 F.3d 186 ( 2015 )

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
______
Nos. 12-1145 and 13-1491
______
UNITED STATES OF AMERICA
v.
KENNETH SCHNEIDER,
Appellant
______
On Appeal from United States District Court
for the Eastern District of Pennsylvania
(E.D. Pa. No. 2-10-cr-00029-001)
District Judge: Honorable Juan R. Sanchez
______
Argued January 20, 2015
Before: FISHER, JORDAN and GREENAWAY, JR., Circuit
Judges.
(Filed: September 9, 2015)
Howard J. Bashman, Esq. ARGUED
Suite G-22
2300 Computer Avenue
Willow Grove, PA 19090
Counsel for Appellant
Vineet Gauri, Esq.
Michelle Morgan, Esq. ARGUED
Daniel A. Velez, Esq.
Office of United States Attorney
615 Chestnut Street
Suite 1250
Philadelphia, PA 19106
Counsel for Appellee
______
OPINION OF THE COURT
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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.
2
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
3
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.
4
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.
5
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.
6
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 (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.”
7
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 same “for the purpose of” phrase
used in the original Mann Act and construed by
the Supreme Court and a number of lower
courts. . . . [Furthermore, t]he familial
relationship between § 2423(b) and the Mann
Act suggests that Congress intended the same
meaning for identical phrases in the two
statutes.
Id. at 1069, 1070 n.6. The Fifth Circuit has noted that “early
cases interpreting the original Mann Act are authoritative in
construing § 2423(b).” Garcia-Lopez, 234 F.3d at 220 n.3.
We agree, so we proceed on the basis that Mann Act
precedent such as Mortensen is instructive and persuasive in §
2423(b) cases.
2. The “innocent round trip” exception to the Mann Act
8
Next, we consider whether the Mortensen “innocent
round trip” exception should be extended from prosecutions
under § 2421 to those under § 2423(b). Mortensen involved a
husband and wife who jointly operated a “house of
prostitution” in Grand Island, Nebraska. 322 U.S. at 372. In
1940, they planned a car trip to Salt Lake City, Utah, to visit
the wife’s parents. Id. Two women who were employed by
the Mortensens as prostitutes “asked to be taken along for a
vacation and the Mortensens agreed to their request.” Id. On
this vacation, they drove to and visited Yellowstone National
Park and Salt Lake City. They visited Mrs. Mortensen’s
parents, went to shows and parks, and visited other parts of
the city. Id. Upon completing the trip, they all returned
together to Grand Island, where the two women subsequently
returned to working as prostitutes. Id. Importantly, “[n]o acts
of prostitution or other immorality occurred during the two-
week trip and there was no discussion of such acts during the
course of the journey.” Id. The women were not obligated to
return to Grand Island to work for the Mortensens and were
free at any time to leave their jobs for other pursuits. Id. at
372-73.
The Mortensens were subsequently charged with two
violations of the Mann Act—that they “aided and assisted in
obtaining transportation for and in transporting, two girls in
interstate commerce from Salt Lake City to Grand Island for
the purpose of prostitution and debauchery.” Id. at 373. The
Supreme Court noted that any “intention that the women or
girls shall engage in the conduct outlawed by [the Mann Act]
must be found to exist before the conclusion of the interstate
journey and must be the dominant motive of such interstate
movement. And the transportation must be designed to bring
about such result.” Id. at 374. It ultimately held that the trip
was not taken with such an intent, but rather that “[i]t was a
9
complete break or interlude in the operation of petitioners’
house of ill fame and was entirely disassociated therefrom.”
Id. at 375. In a crucial section of the opinion, the Supreme
Court wrote that:
The fact that the two girls actually resumed
their immoral practices after their return to
Grand Island does not, standing alone, operate
to inject a retroactive illegal purpose into the
return trip to Grand Island. Nor does it justify
an arbitrary splitting of the round trip into two
parts so as to permit an inference that the
purpose of the drive to Salt Lake City was
innocent while the purpose of the homeward
journey to Grand Island was criminal. The
return journey under the circumstances of this
case cannot be considered apart from its integral
relation with the innocent round trip as a whole.
There is no evidence of any change in the
purpose of the trip during its course. If innocent
when it began it remained so until it ended.
Guilt or innocence does not turn merely on the
direction of travel during part of a trip not
undertaken for immoral ends.
Id. This language gave birth to what has become known as
the “innocent round trip” exception to § 2421. See, e.g.,
Forrest v. United States, 363 F.2d 348, 350 n.1 (5th Cir.
1966); United States v. Nichol, 323 F.2d 633, 634 (7th Cir.
1963). Schneider invokes this exception here and argues that
it should apply to his conviction under § 2423(b). In the end,
we need not determine whether the exception is a feature of
§ 2423(b) cases because, even if it is, Schneider’s conduct
would not fall within it.
10
3. The exception’s application to Schneider’s conviction
We turn, then, to the question of whether Schneider’s
conviction could qualify for the “innocent round trip”
exception. The modern-day version of the Mann Act, 18
U.S.C. § 2421, states that “[w]hoever knowingly transports
any individual in . . . foreign commerce . . . with intent that
such individual engage in . . . any sexual activity for which
any person can be charged with a criminal offense, or
attempts to do so, shall be [fined or imprisoned, or both].” 18
U.S.C. § 2421 (2000). On the other hand, the statute under
which Schneider was convicted, 18 U.S.C. § 2423(b), states
that “a United States citizen . . . who travels in foreign
commerce . . . for the purpose of engaging in any sexual act
(as defined in section 2246) with a person under 18 years of
age that would be in violation of chapter 109A . . . shall be
[fined, imprisoned, or both].” 18 U.S.C. § 2423(b) (2000). As
applicable to Schneider, one of the sexual acts defined in §
2246 that would be in violation of chapter 109A is an adult
knowingly engaging in a sexual act with a minor between the
ages of twelve and sixteen years old who is at least four years
younger than the adult. 18 U.S.C. § 2243(a) (2000).
Schneider argues that § 2421 and § 2423(b) use similar
language and have been interpreted in parallel; therefore, he
contends, the District Court erred when it found the “innocent
round trip” exception a basis for a judgment of acquittal on
the § 2421 transport charge but not on the § 2423(b) travel
charge.
We disagree. As an initial matter, we decline
Schneider’s invitation to compare his two counts of
conviction. The District Court’s disposition of Schneider’s
conviction under § 2421 is not before us, and therefore we do
not comment on it.
11
Though Mortensen uses the language of a “dominant”
purpose, our sister Circuits have held that “[i]t suffices if one
of the efficient and compelling purposes in the mind of the
accused in the particular transportation was [illegal sexual]
conduct.” United States v. Campbell, 49 F.3d 1079, 1082 (5th
Cir. 1995) (internal quotation marks omitted); see also Vang,
128 F.3d at 1072. This is because the statement in Mortenson
that the immoral purpose must be the defendant’s most
significant motivation has long been held to be dictum. “It
now appears settled that . . . immoral conduct, need not be the
sole reason for the transportation; the Act may be violated if
[immoral conduct] is a dominant or a compelling and efficient
purpose. Despite the contrary implication suggested by the
word ‘dominant,’ it need not be the most important of
defendant’s reasons when multiple purposes are present.”
United States v. Snow, 507 F.2d 22, 24 (7th Cir. 1974)
(footnotes omitted); accord United States v. Lebowitz, 676
F.3d 1000, 1014-15 (11th Cir. 2012); United States v. Miller,
148 F.3d 207, 212 (2d Cir. 1998); United States v. Tyler, 424
F.2d 510, 512 (10th Cir. 1970); United States v. Bennett, 364
F.2d 77, 78-79 & n.4 (4th Cir. 1966); Nunnally v. United
States, 291 F.2d 205, 208 (5th Cir. 1961); Bush v. United
States, 267 F.2d 483, 485 (9th Cir. 1959); Daigle v. United
States, 181 F.2d 311, 314 (1st Cir. 1950); Mellor v. United
States, 160 F.2d 757, 764 (8th Cir. 1947). Thus, resuming
sexual contact with the victim need not be Schneider’s only
or most important purpose for a jury to convict him of
violating § 2423(b).
Several facts directly link Schneider’s travel from
Russia to the United States and back with his desire to
continue a sexually abusive relationship with the victim. The
victim and Schneider’s relationship was, from the outset,
grounded in Schneider’s promise that he would “make [the
12
victim] a star,” which was the victim’s father’s dream. App.
at 274. Further, from their very first meeting, Schneider had
discussed with the victim his “interest[] in going to America.”
App. at 567-68. The victim was “interested about [sic]
America” and “interested in going to America to study and,
perhaps, to have a career.” App. at 580-81. Schneider only
had access to the victim because he was able to help him stay
enrolled in a prestigious ballet academy and provide the
resources to help propel the victim’s ballet career. With this
trip, Schneider was providing the victim with an exciting
overseas excursion as part of Schneider’s promise to propel
his ballet career forward.
Thus, the trip to Philadelphia was a critical component
of Schneider’s scheme to sexually abuse the victim; it was not
a “complete break or interlude” in the illicit activities. See
Mortensen, 322 U.S. at 375. The trip was not an “innocent”
recreational trip or vacation that may have had the incidental
effect of currying favor with the victim and therefore is
distinguishable from Mortensen and the other cases where the
innocent round trip exception has been applied. See, e.g.,
United States v. Ross, 257 F.2d 292 (2d Cir. 1958) (defendant
and prostitute took weekend recreational trips from New
York to New Jersey); Oriolo v. United States, 324 U.S. 824
(1945) (per curiam) (defendant and prostitute took
recreational trip to Atlantic City). Because the trip was part of
Schneider’s calculated plan to manipulate and abuse the
victim, the Mortensen exception is inapplicable.
The “verdict must be assessed from the perspective of
a reasonable juror, and the verdict must be upheld as long as
it does not fall below the threshold of bare rationality.”
Caraballo-Rodriguez, 726 F.3d at 431 (internal quotation
marks omitted). “Unless the jury’s conclusion is irrational, it
must be upheld. In our role as reviewers, we must resist the
13
urge to hypothetically insert ourselves into the jury room for
deliberations.” Id. at 432. Reviewing the evidence in the light
most favorable to the prosecution, based on the facts and
testimony described above, a rational jury could conclude that
one of Schneider’s efficient and compelling purposes of the
trip from Moscow to Philadelphia and back was to further
Schneider’s sexually abusive relationship with the victim by
continuing to lay the groundwork for the victim’s dependence
on Schneider. This conclusion disqualifies Schneider from the
protection provided by the “innocent round trip” exception.
We will affirm the District Court’s denial of
Schneider’s motion for a judgment of acquittal.
B.
Before trial, Schneider moved to dismiss the
indictment as barred by a five-year statute of limitations. The
District Court denied this motion, holding that the indictment
was timely under 18 U.S.C. § 3283, a special provision
extending the statute of limitations for offenses involving the
sexual abuse of a child. We review de novo the denial of a
motion to dismiss on statute of limitations grounds. United
States v. Hoffecker, 530 F.3d 137, 168 (3d Cir. 2008).
Schneider was indicted on January 14, 2010. The
general statute of limitations is five years after the offense is
committed. 18 U.S.C. § 3282. Because the offense with
which Schneider was charged occurred on August 22, 2001,
he argues that § 3282 bars his prosecution. The Government
argues that the statute of limitations does not apply because
the version of 18 U.S.C. § 3283 in effect at the time of the
offense expressly provided that “[n]o statute of limitations
that would otherwise preclude prosecution for an offense
involving the sexual . . . abuse of a child under the age of 18
years shall preclude such prosecution before the child reaches
the age of 25 years.” 18 U.S.C. § 3283 (2000). Thus, because
14
the victim was under twenty-five years old at the time of the
prosecution, we must determine whether the offense with
which Schneider was charged “involve[ed] the sexual . . .
abuse of a child.”
The extension of the statute of limitations for offenses
“involving the sexual . . . abuse of a child under the age of 18
years” in § 3283 was originally codified at 18 U.S.C. §
3509(k) as part of the Crime Control Act of 1990, Pub. L. No.
101-647, 104 Stat. 4789 (1990), and later transferred verbatim
to § 3283. There, “sexual abuse” is defined as including the
“employment, use, persuasion, inducement, enticement, or
coercion of a child to engage in . . . the rape, molestation,
prostitution, or other form of sexual exploitation of children.”
18 U.S.C. § 3509(a)(8).
Schneider argues that this extension of the statute of
limitations cannot apply to an offense under 18 U.S.C.
§ 2423(b) because § 2423(b) merely “criminalizes interstate
travel for an illicit purpose,” United States v. Tykarsky, 446
F.3d 458, 469 (3d Cir. 2006), and does not require that any
action be taken that “involv[es] the sexual . . . abuse of a
child,” 18 U.S.C. § 3283. The statute on its face does not
require any actual illicit sexual conduct, but merely travel
with the intent to engage in such conduct. Schneider therefore
contends that by this plain reading, the sexual abuse of a child
is not an “essential ingredient” of the offense of conviction.
In support, Schneider analogizes to Bridges v. United
States, 346 U.S. 209 (1953). In that case, the Supreme Court
examined the Wartime Suspension of Limitations Act
(“WSLA”), 18 U.S.C. § 3287, which applied to offenses
“involving the defrauding of the United States,” Bridges, 346
U.S. at 215. The United States had charged the petitioner with
making a false statement in his application for naturalization.
Id. at 213. The Court had to determine whether such conduct
15
“involv[ed] the defrauding of the United States,” much as we
here must determine whether Schneider’s conduct “involv[ed]
the sexual . . . abuse of a child.” The Court stated that
Congress, in passing the WSLA, “was concerned with the
exceptional opportunities to defraud the United States that
were inherent in its gigantic and hastily organized
procurement program. It sought to help safeguard the treasury
from such frauds by increasing the time allowed for their
discovery and prosecution.” Id. at 218. As a result, the Court
held that the WSLA did not apply to the offense of knowingly
making a false statement under oath in a naturalization
proceeding because “fraud is not an essential ingredient” of it.
Id. at 222.
Schneider urges that we adopt a similar “essential
ingredient” test in this case and rule that because sexual abuse
is not an essential ingredient of a violation of § 2423(b), the
statute of limitations remains at five years. He notes that a
violation of § 2423(b) requires neither an actual child nor
actual abuse, that Congress has not evinced a clear intent in §
3283 to eliminate the statute of limitations for “bad intent”
crimes, and that statutes of limitations are to be “liberally
interpreted in favor of repose.” Toussie v. United States, 397
U.S. 112, 115 (1970) (internal quotation marks omitted).
We disagree. We hold that a violation of § 2423(b) for
“travel[ing] in foreign commerce . . . for the purpose of
engaging in any sexual act . . . with a person under 18 years
of age that would be in violation of chapter 109A,” 18 U.S.C.
§ 2423(b) (2000), involves the sexual abuse of a person under
age 18. At the time of the offense, chapter 109A made it a
crime to knowingly engage in a sexual act with a person
between the age of twelve and sixteen years if the offender
was more than four years older than the minor. See 18 U.S.C.
§ 2243(a).
16
Schneider’s reliance on Bridges is inapposite. While
Bridges did adopt an “essential ingredient” test, the
limitations-extending statute at issue was a narrowly drafted
exception specifically intended to target frauds related to war
procurement. Unlike the WSLA, § 3283 has no such
restrictive language or legislative history suggesting
congressional intent to limit its application to a specific subset
of circumstances. Congress, rather, has evinced a general
intention to “cast a wide net to ensnare as many offenses
against children as possible.” United States v. Dodge, 597
F.3d 1347, 1355 (11th Cir. 2010) (en banc). The District
Court’s ruling is consonant with, not contrary to, that intent.
In particular, Schneider’s conduct “involves sexual
abuse” as contemplated by § 3283. Schneider was convicted
of traveling with the purpose of engaging in sex with the
victim, a minor. The victim testified that before the trip to
Philadelphia, he and Schneider engaged in oral and anal sex
three to four times per week; that upon returning to Moscow
the sexual activities between Schneider and the victim
resumed and continued to occur two to three times per week;
and that Schneider engaged in psychological manipulation,
urging the victim to keep Schneider’s conduct secret, conceal
any physical injuries, and stay away from girls.
Sexual abuse includes the “persuasion, inducement,
enticement, or coercion of a child to engage in . . . sexually
explicit conduct.” 18 U.S.C. § 3509(a)(8) (2000). Sexual
abuse as defined here encompasses a wider set of behavior
than just rape or other unwanted sexual touching. Schneider
agreed to sponsor the victim on the basis of his talent, paid for
the victim’s ballet academy fees, had the victim move into his
apartment where he raped and sexually abused him
repeatedly, and traveled with the victim to the United States
so that the victim could attend a prestigious summer ballet
17
school. This series of actions sufficiently involves the
“persuasion, inducement, enticement or coercion of a child to
engage in . . . sexually explicit conduct” to invoke the longer
statute of limitations for offenses “involving the sexual . . .
abuse of a child.” See 18 U.S.C. § 3509(a)(8) (2000); 18
U.S.C. § 3283 (2000). We will affirm the District Court’s
ruling that Schneider’s violation of § 2423(b) involves sexual
abuse of a child.
C.
During his trial, Schneider sought to inform the jury
that he had been continuously incarcerated for four to five
months before trial, and was therefore unable to obtain
treatment during that time for a medical condition. The
District Court did not allow this statement because it was
concerned with its prejudicial effect on the jury. The Court
did allow Schneider to testify that it had been impossible for
him to seek treatment during this period without mentioning
his incarceration. He appeals the District Court’s evidentiary
ruling. “We review the District Court’s decisions as to the
admissibility of evidence for abuse of discretion.” United
States v. Serafini, 233 F.3d 758, 768 n.14 (3d Cir. 2000).
In July 2008, Schneider learned of the victim’s
allegations of sexual abuse, and in August 2008, the victim
filed a civil complaint against Schneider. In November 2009,
in connection with the civil case, the victim drew two pictures
of Schneider’s erect penis which depict a curvature, and on
January 22, 2010, the victim signed an affidavit in the civil
case describing Schneider’s penis when erect, and attached
the two drawings to the affidavit. As of January 27, 2010, the
victim’s attorneys had provided the affidavit and drawings to
Schneider’s attorneys.
On March 27, 2010, Schneider was arrested abroad.
He was held for two days and released on bail on March 29,
18
2010. On May 17, 2010, Schneider was returned to custody,
and on May 28, 2010, Schneider was brought to the Federal
Detention Center in Philadelphia, where he was held through
the trial. On August 4, 2010, while Schneider was detained,
Dr. Victor Carpiniello, an expert urologist, examined
Schneider’s erect penis.
Dr. Carpiniello testified that the victim’s description
and drawings of Schneider’s erect penis were consistent with
a condition known as Peyronie’s disease. This disease is
caused by a formation of plaque, or hard fibrous tissue, on the
penile shaft, which causes abnormal curvature. The curvature
resulting from Peyronie’s disease is mainly treated by
surgical removal of the plaque, but potentially also by
“injectable collagenase, radiation, oral vitamin E, topical
vitamin E, Verapamil, Interferon Alpha 2B, iontoforesis and
electro corporeal shock wave therapy,” none of which are
likely to leave scarring. App. at 984-85. Dr. Carpiniello also
testified that when he examined Schneider, on August 4,
2010, he determined that Schneider had a normal erection
without curvature and noted “no scarring or evidence of a
procedure.” App. at 969. Finally, Dr. Carpiniello noted that,
in his opinion, Schneider does not have and never had
Peyronie’s disease.
Following Dr. Carpiniello’s testimony, but prior to
Schneider’s testimony, Schneider’s counsel informed the
District Court that he intended to elicit testimony from
Schneider that Schneider had been incarcerated for the prior
four months, since May 27, 2010. The District Court
instructed that Schneider could testify that from the date he
went back into custody until the date of his testimony, it was
impossible for him to seek treatment for Peyronie’s disease.
The District Court further ruled that Schneider could not “say
or mention anything along the lines of prison,” App. at 1315,
19
on the basis that evidence of Schneider’s incarceration would
be unfairly prejudicial and would create sympathy for him
with the jury.
Evidence may only be admitted if it is relevant; that is,
if it “has any tendency to make a fact more or less probable
than it would be without the evidence; and . . . the fact is of
consequence in determining the action.” Fed R. Evid. 401.
Not all relevant evidence, however, is admissible. A District
Court “may exclude relevant evidence if its probative value is
substantially outweighed by a danger of . . . unfair prejudice.”
Fed. R. Evid. 403. In this context, unfair prejudice means “an
undue tendency to suggest decision on an improper basis,
commonly, though not necessarily, an emotional one.” Fed.
R. Evid. 403 advisory committee’s note. Because the District
Court allowed Schneider to testify that he could not receive
treatment during the period from May 2010 until September
2010, but not that he was incarcerated during this period, we
review only the judge’s ruling prohibiting Schneider from
commenting on his incarceration for abuse of discretion. See
Serafini, 233 F.3d at 768 n.14. The District Court abuses its
discretion if its decision “rests upon a clearly erroneous
finding of fact, an errant conclusion of law or an improper
application of law to fact.” Newton v. Merrill Lynch, Pierce,
Fenner & Smith, Inc., 259 F.3d 154, 165-66 (3d Cir. 2001)
(internal quotation marks omitted). “In order to justify
reversal, a [D]istrict [C]ourt’s analysis and resulting
conclusion must be arbitrary or irrational.” United States v.
Universal Rehab. Servs. (PA), Inc., 205 F.3d 657, 665 (3d
Cir. 2000) (en banc) (internal quotation marks omitted).
Therefore, we examine whether the District Court arbitrarily
or irrationally weighed this evidence’s probative value against
its danger of unfair prejudice.
1. Probative value
20
Schneider contends that this testimony holds probative
value because it supports his argument to the jury that his
penis did not match the victim’s drawings and description,
thus undermining a key piece of the evidence. He states that
the facts that he was unable to receive treatment prior to the
expert examination due to his incarceration and that the
expert’s testimony was that his penis—examined while
incarcerated—did not match the victim’s drawings and
descriptions, support his argument that the victim did not
have knowledge of what his penis looked like, and that
Schneider therefore did not have sexual contact with the
victim. Schneider contends that this adverse ruling “made it
far more likely [that he] would be convicted on these charges
by excluding compelling evidence that [the victim] had
fabricated his claims of sexual abuse.” Appellant’s Br. at 47.
Schneider overstates the probative value of this
testimony, as he had the ability to alter his penile condition
prior to his ultimate incarceration before trial. Schneider first
learned of the victim’s accusations of sexual abuse in August
2008, eighteen months before he was initially arrested, and
first learned of the victim’s affidavit and drawings by January
27, 2010, two months before he was arrested. Furthermore,
Schneider was free on bail for six weeks from March 29,
2010 to May 17, 2010. Because Schneider had multiple
periods to receive treatment before he was incarcerated, the
fact that he could not receive treatment in the months leading
up to the trial has little probative value to the crucial issue of
the victim’s familiarity with Schneider’s penis. In addition,
because Schneider was permitted to mention that he could not
receive treatment during the pre-trial period, the incremental
probative value of mentioning his incarceration is low.
2. Potential for unfair prejudice
21
Schneider argues that allowing him to make this
statement would have presented little potential for unfair
prejudice. Schneider contends that “any general inclination to
exclude from evidence the fact of a criminal defendant’s
pretrial incarceration is to protect the defendant, not the
prosecution, from unfair prejudice.” Appellant’s Br. at 47-48.
We disagree. While this argument is facially plausible, it is
supported by no citation to any case law or secondary
authority. See Appellant’s Br. at 47-48. Nor do the Federal
Rules of Evidence, either in their text or in the advisory
committee’s notes, contain any instruction or indication that
evidence of incarceration is inadmissible if the defendant
would be prejudiced, but admissible if the prosecution would
be prejudiced.
The Government, on the other hand, argues that
allowing Schneider to testify in this manner holds great
potential for unfair prejudice. It contends that Schneider
sought to stir sympathy with the jury, and identifies other
cases where evidence was ruled inadmissible due to its
potential to induce sympathy for the defendant in the jury. See
United States v. Harris, 491 F.3d 440, 447 (D.C. Cir. 2007);
United States v. Pintado-Isiordia, 448 F.3d 1155, 1158 (9th
Cir. 2006) (per curiam). When a District Court decides
whether evidence, such as Schneider’s testimony, is
admissible, it must weigh the probative value of the testimony
with the potential for unfair prejudice. Only when the
probative value is “substantially outweighed” by the potential
for unfair prejudice is the evidence inadmissible. Schneider’s
testimony on incarceration has little probative value, but the
potential for unfair prejudice is real. The District Court did
not abuse its discretion in making this judgment.
We therefore will affirm the District Court’s ruling on
this issue.
22
D.
At trial, the victim testified that Schneider showed him
the film Nijinsky, which told the story of Vaslav Nijinsky, a
ballet dancer in the early 1900s, and his older patron and
lover, Sergei Diaghilev. The District Court admitted into
evidence excerpts of the film which depict Diaghilev kissing
Nijinsky, Nijinsky performing in a ballet that includes an act
of simulated masturbation, and Nijinsky marrying a woman
and becoming mentally ill. At various points, the Court also
allowed the introduction of other testimony regarding a
birthday card, porcelain figurines of faun-like creatures,
payment for goods, and Schneider’s psychological
relationship with the victim.
After the trial, Schneider moved for a new trial due to
the introduction of unduly prejudicial evidence, claiming that
evidence relating to Count Two, upon which Schneider was
ultimately granted a judgment of acquittal, prejudicially
spilled over to the jury’s assessment of Count One. The
District Court ruled that while it committed error in admitting
the evidence because it was unduly prejudicial, the
introduction of the evidence was harmless. Schneider argues
that the District Court erred, while the United States argues
that the District Court properly admitted the evidence as
intrinsic, and that the evidence was not unfairly prejudicial, or
the error, if any, was harmless.
We review the District Court’s decision for an abuse of
discretion. United States v. Butch, 256 F.3d 171, 175 (3d Cir.
2001). If we find that the District Court abused its discretion,
we review de novo whether that error was prejudicial or
harmless. United States v. Cross, 308 F.3d 308, 317-18 (3d
23
Cir. 2002).1 An error is harmless when it is “highly probable
that it did not prejudice the outcome.” Id. at 318 (internal
quotation marks omitted). “While the Government bears the
burden of showing that the error was harmless, we can affirm
for any reason supported by the record.” Id. at 326 (citation
omitted).
“In practice, therefore, prejudicial spillover analysis . . .
begins by asking whether any of the evidence used to prove
the [count on which the defendant was acquitted] would have
been inadmissible to prove the remaining count. . . . [I]f the
answer is ‘yes,’ then we must consider whether the verdict on
the remaining count was affected adversely by the evidence
that would have been inadmissible at a trial limited to that
count.” Id. at 318. If all evidence on the discarded counts
would remain admissible to prove the remaining count, our
inquiry ends. Id.
As already noted, a court may exclude relevant
evidence if “its probative value is substantially outweighed by
a danger of . . . unfair prejudice.” Fed. R. Evid. 403.
Schneider argues that the Nijinsky excerpts were inadmissible
to prove Count One because they “included sexual content
unrelated to the charges in this case,” were “extremely
prejudicial,” and were “compelling and emotional.”
Appellant’s Br. at 50-51, 53, 64. He contends that the
prosecutor “was permitted to show the jury highly prejudicial
excerpts from that film that portrayed the older Diaghilev
1
The error alleged here is not of constitutional
dimension. If it were, it could only be called “harmless” if we
could say that, beyond reasonable doubt, it did not contribute
to the verdict. See Mitchell v. Esparza, 540 U.S. 12, 17-18
(2003).
24
seducing and then controlling the much younger Nijinsky,”
Appellant’s Br. at 53, which was admitted solely to establish
the victim’s dependence on Schneider, a unique element of
Count Two—a count on which Schneider was later granted a
judgment of acquittal. In support, he notes that when the
attorneys were discussing the admissibility of the Nijinsky
excerpts at trial, the prosecutor stated that “[i]t shows his . . .
control over the victim and the psychological inference.”
App. at 481. Furthermore, in her closing argument, the
prosecutor mentioned the Nijinsky evidence as supporting an
element of Count Two which was not required in Count
One—compulsion. App. at 1625-26. Finally, ruling on the
motion for a new trial after Schneider’s conviction, the
District Court wrote that it “agree[d that] excerpts of the film
were unduly prejudicial inasmuch as they included sexual
content unrelated to the charges in this case.” App. at 49.
This argument is unpersuasive. The Nijinsky evidence
is admissible as evidence intrinsic to Count One. Rule 404(b)
“does not apply to evidence of uncharged offenses committed
by a defendant when those acts are intrinsic to the proof of
the charged offense.” Hoffecker, 530 F.3d at 189 (internal
quotation marks omitted). “[A]cts are intrinsic when they
directly prove the charged [offense].” Cross, 308 F.3d at 320
(internal quotation marks omitted). “Even if the evidence is
‘extremely prejudicial to the defendant,’ ‘the court would
have no discretion to exclude it because it is proof of the
ultimate issue in the case.’” Hoffecker, 530 F.3d at 189
(quoting United States v. Gibbs, 190 F.3d 188, 218 (3d Cir.
1999)). For example, the fact that Schneider showed the
victim the movie and told him that he should not leave
Schneider in the way that Nijinsky left Diaghilev made it
more likely that Schneider and the victim had a sexual
relationship before the trip to Philadelphia, which
25
consequently made it more likely that Schneider intended to
resume a sexual relationship upon returning to Moscow.
Furthermore, the other evidence of Schneider’s prolonged
psychological entanglement with the victim also directly
proved the crime charged in Count One because it spoke to
Schneider’s purpose in traveling back to Russia—a key
component of his ultimate conviction.
Because the conduct was intrinsic to Count One,
Cross, 308 F.3d at 320, and the District Court’s initial
evidentiary ruling was not “clearly contrary to reason,” Butch,
256 F.3d at 175 (internal quotation marks omitted), we hold
that the District Court did not abuse its discretion in denying
the motion for a new trial. More specifically, we hold that
Nijinsky evidence is admissible as intrinsic evidence, in
contrast to the District Court deeming its admission erroneous
as unfairly prejudicial, but ultimately harmless. “[W]e can
affirm for any reason supported by the record,” Cross, 308
F.3d at 326, and we do so in this instance. Though we base
our decision on a different ground, we will affirm the District
Court’s dismissal of a motion for a new trial on this issue.
E.
Schneider appeals the District Court’s denial of his
motion for a new trial under Federal Rule of Criminal
Procedure 33(b)(1). Schneider claims he discovered new
evidence in connection with the ongoing civil suit that the
victim is pursuing against him “strongly suggest[ing] perjury
by [the victim] at trial and a significant Brady violation.”
26
Appellant’s Br. at 64-65.2 The District Court did not grant an
evidentiary hearing on the matter and denied Schneider’s
motion for a new trial. We review the District Court’s denial
of a motion for a new trial for abuse of discretion. United
States v. Salahuddin, 765 F.3d 329, 346 (3d Cir. 2014).
In order to succeed on a motion for a new trial based
on newly-discovered evidence, the defendant carries the
burden of establishing five elements:
(a) [T]he evidence must be in fact newly
discovered, i.e.[,] discovered since trial; (b)
facts must be alleged from which the court may
infer diligence on the part of the movant; (c) the
evidence relied on must not be merely
cumulative or impeaching; (d) it must be
material to the issues involved; and (e) it must
be such, and of such nature, as that, on a new
trial, the newly discovered evidence would
probably produce an acquittal.
United States v. Quiles, 618 F.3d 383, 388-89 (3d Cir. 2010)
(internal quotation marks omitted).
1. Newly-discovered Brady violation
Schneider first asserts that he should be granted a new
trial based on a newly-discovered violation of the rule in
2
We have granted a motion to seal portions of the
appendix filed in this case. In this section, we find it
necessary to include some of the sealed information, but have
revealed it in such a way as to carry out the intent and
purpose of the motion to seal.
27
Brady v. Maryland, 373 U.S. 83 (1963). “To establish a due
process violation under Brady, then, a defendant must show
that: (1) evidence was suppressed; (2) the suppressed
evidence was favorable to the defense; and (3) the suppressed
evidence was material either to guilt or to punishment.”
United States v. Pelullo, 399 F.3d 197, 209 (3d Cir. 2005)
(internal quotation marks omitted). Schneider’s basis for his
claim is that the victim testified in a deposition in his civil
case that he was paid for his testimony in the criminal case—
payments that were undisclosed to the defense. While
ordinarily this would raise a red flag, see, e.g., United States
v. Bagley, 473 U.S. 667, 683-84 (1985) (holding that there
was a Brady violation when federal prosecutors withheld
evidence of inducements made to witnesses to encourage
them to testify against the defendant), in this case these
revelations are insufficient to establish a Brady violation or
other grounds for a new trial. In the victim’s deposition, the
following exchange occurred:
Q: Okay. Did you ever get witness vouchers
from the government for testifying?
A: What is witness vouchers?
Q: I’m asking you. Do you know what they are?
A: I was paid for testifying.
Q: How did you get paid?
A: Michelle, Mrs. Morgan3 went with me to the
place to withdraw money.
...
3
Assistant U.S. Attorney Michelle Morgan-Kelly.
28
Q: Did she go over to the place like to cash a
check and she’d give them a slip of paper,
they’d give you money?
A: Yes.
Q: And who was the slip of paper from?
A: From Michelle Morgan Kelly. [sic]
App. at 2353.
Schneider cannot carry his burden based on this
testimony. First, he has not established that the evidence was
undisclosed under Brady or that it was newly-discovered
under Rule 33. The witness fees and per diem stipends that
the victim was paid are required by statute. See 28 U.S.C. §
1821. Furthermore, the payments were disclosed on the
second day of trial—and two days before the victim
testified—in an email from an Assistant United States
Attorney to Schneider’s trial counsel, who responded that he
did not intend to cross-examine the victim on it. Nor can
Schneider establish that the payment of fees was favorable to
the defense (the second Brady element) because the victim,
an alleged crime victim, was paid via statutorily-mandated
vouchers, unlike the witness in United States v. Bagley, who
was paid in cash as a cooperating informant in exchange for
information. 473 U.S. at 683. The District Court “[found]
Schneider’s argument as to the witness vouchers baseless,”
and denied the motion for a new trial on this ground. App. at
65.
Therefore, we will hold that District Court did not
abuse its discretion in denying Schneider’s motion for a new
trial on this basis.
29
2. Newly-discovered perjury
Schneider next asserts that he should be granted a new
trial based on his discovery that the victim perjured himself in
connection with the civil trial. The District Court rejected this
argument, which we review for abuse of discretion.
Salahuddin, 765 F.3d at 346. Schneider contends that here we
should use the test from Larrison v. United States, 24 F.2d 82
(7th Cir. 1928), to determine whether he should be granted a
new trial. This test has three prongs:
(a) The court is reasonably well satisfied that
the testimony given by a material witness is
false. (b) That without it the jury might have
reached a different conclusion. (c) That the
party seeking the new trial was taken by
surprise when the false testimony was given and
was unable to meet it or did not know of its
falsity until after the trial.
Larrison, 24 F.2d at 87-88. Not only has “[t]he Larrison test .
. . not been adopted by this Court,” Gov’t of V.I. v. Lima, 774
F.2d 1245, 1251 n.4 (3d Cir. 1985), but even the Seventh
Circuit has subsequently abandoned it, United States v.
Mitrione, 357 F.3d 712, 718 (7th Cir. 2004) (“Today, we
overrule Larrison and adopt the reasonable probability test.”),
vacated on other grounds, 543 U.S. 1097 (2005). Therefore,
we use the same five-factor test from Quiles identified above.
618 F.3d at 388-89.
Schneider says that he discovered “notes taken by a
professional quoting the lone accuser saying that he
committed perjury in relation to the same case, fears going to
prison if found out, and is concerned that the conviction will
be overturned.” Appellant’s Br. at 65-66. His argument fails
at least on the fifth prong—“[the newly discovered evidence]
30
must be such, and of such nature, as that, on a new trial, the
newly discovered evidence would probably produce an
acquittal.” Quiles, 618 F.3d at 388-89 (internal quotation
marks omitted). The evidence of this alleged perjury that
Schneider complains of consists of the victim’s
psychologist’s notes and summaries of sessions in May and
June 2012. These notes and summaries describe the victim’s
worry about minor inconsistencies in the civil case and the
victim’s trial strategy.
Schneider’s argument is unavailing. First, Schneider is
unable to identify any specific alleged perjury. Further, when
these excerpts are placed in context of the overall timeline of
the civil case, it becomes clear that there is no perjury and
that the victim was concerned about inaccuracies in his
testimony about Susan Schneider,4 Kenneth Schneider’s
sister, in a civil case deposition. As noted above, the victim
sued Schneider, Schneider’s parents, Schneider’s siblings,
and the Apogee Foundation5 in a civil suit. The victim was
first deposed in connection with this suit on February 28,
2012, where he discussed, among other things, Schneider’s
sister. In April 2012, he spoke with his initial attorney about
the civil case, and expressed his concerns about his testimony
in the civil case to his psychologist in May 2012. The
psychologist’s notes were obtained by the defense on August
3, 2012, and turned over to the victim’s new attorneys shortly
4
Susan Schneider was not a party to the criminal
prosecution and did not testify in connection with the criminal
prosecution.
5
The Apogee Foundation is Schneider’s purported
charitable foundation for gifted children in the fine arts. The
victim was nominally a board member of the foundation.
31
thereafter. A few days later, the victim, through his attorneys,
provided two points of errata to correct his February
deposition regarding statements he previously had attributed
to Susan Schneider. See Supp. App. at 59-69. Given this
context, it appears that the victim’s comments to his
psychologist concern testimony he gave about Susan
Schneider’s comments, and do not constitute testimony that
would rise to the level of perjury which would be “of such
nature, as that, on a new trial, the newly discovered evidence
would probably produce an acquittal.” Quiles, 618 F.3d at
388-89 (internal quotation marks omitted). In addition, the
psychologist’s notes are also strongly corroborative of the
victim’s testimony at trial. They include statements about
Schneider’s predatory and abusive relationship with the
victim. App. at 2325.
Because the District Court did not abuse its discretion
when it declined to hold an evidentiary hearing on or grant
Schneider’s motion for a new trial based on the newly-
discovered “perjury,” we will affirm the District Court’s
ruling.
F.
When it sentenced Schneider, the District Court began
by selecting United States Sentencing Guideline (“U.S.S.G.”)
§ 2A3.2 as the starting point for its offense level calculation.
The District Court then invoked a cross-reference found in
§ 2A3.2, which dictates that “[i]f the offense involved
criminal sexual abuse or attempt to commit criminal sexual
abuse (as defined in 18 U.S.C. 2241 or 2242), apply
§ 2A3.1.” U.S. Sentencing Guidelines Manual § 2A3.2(c)(1)
(2000). The District Court determined that Schneider’s
offense level under § 2A3.1 was thirty-five. Schneider
appeals the District Court’s use of the § 2A3.1 cross-
reference.
32
“We exercise plenary review over a district court’s
interpretation of the Sentencing Guidelines.” United States v.
Solomon, 766 F.3d 360, 364 (3d Cir. 2014). As the first step
in calculating the Guidelines range, a court must “[d]etermine
the offense guideline section in Chapter Two (Offense
Conduct) applicable to the offense of conviction (i.e., the
offense conduct charged in the count of the indictment or
information of which the defendant was convicted).”
U.S.S.G. § 1B1.2(a). Next, “[a]fter determining the
appropriate offense guideline section pursuant to subsection
(a) of this section, determine the applicable guideline range in
accordance with § 1B1.3 (Relevant Conduct).” Id. § 1B1.2(b).
The term “offense,” as used in the cross-reference,
“means the offense of conviction and all relevant conduct
under § 1B1.3.” Id. § 1B1.1 cmt. n.1(H). Therefore, the cross-
reference may be invoked if Schneider’s offense of
conviction “involved . . . sexual abuse” or if Schneider’s
relevant conduct under § 1B1.3 “involved . . . sexual abuse.”
Id. § 2A3.2(c)(1). The District Court found that Schneider’s
relevant conduct under § 1B1.3 “involved sexual abuse”
sufficient to trigger the cross-reference. It is this ruling that
Schneider appeals.
Section 1B1.3 provides that, “[u]nless otherwise
specified, (i) the base offense level where the guideline
specifies more than one base offense level, (ii) specific
offense characteristics and (iii) cross references in Chapter
Two, and (iv) adjustments in Chapter Three, shall be
determined on the basis of the following:
(1)(A) all acts and omissions committed, aided,
abetted, counseled, commanded, induced,
procured, or willfully caused by the defendant .
. . that occurred during the commission of the
offense of conviction, in preparation for that
33
offense, or in the course of attempting to avoid
detection or responsibility for that offense; . . .
[and]
...
(3) all harm that resulted from the acts and
omissions specified . . . above, and all harm that
was the object of such acts and omissions.”
Id. § 1B1.3 (emphases added). Thus, the District Court was
correct to consider all of Schneider’s acts that occurred in
preparation for his offense and during the commission of his
offense, as well as all harm that resulted from those acts.
Furthermore, “[c]onduct that is not formally charged or is not
an element of the offense of conviction may enter into the
determination of the applicable guideline sentencing range.”
U.S.S.G. § 1B1.3 cmt. background.
Schneider’s offense was a violation of 18 U.S.C. §
2423(b) (2000)—foreign travel with the intent to engage in a
sexual act with a minor between the ages of twelve and
sixteen. The District Court provided a list of Schneider’s
actions that were relevant to this offense and pertained to
Schneider’s sexual relationship with the victim. First, it noted
that Schneider was able to commit the offense because he had
cultivated a years-long sexual relationship with the victim by
means of sexual abuse enabled by the victim’s dependence on
Schneider. App. at 2296. It also wrote that “Schneider
fostered the illicit relationship through physical and
psychological manipulation and economic threats with the
intent of maintaining the sexual abuse until and beyond the
time of the conduct constituting the offense of conviction.”
Id.
34
The District Court did not err. These actions are
relevant offense conduct that “involve sexual abuse” because
they were “acts . . . that occurred . . . in preparation for [the]
offense”—Schneider’s plan to travel back to Russia in order
to continue sexually abusing the victim—and because they
facilitated “harm that resulted from [these] acts”—
Schneider’s sexual abuse by force of the victim when he
returned to Russia. U.S.S.G. § 1B1.3. We will affirm the
District Court’s invocation of the cross-reference in U.S.S.G.
§ 2A3.2(c)(1).
IV.
For the reasons set forth above, we will affirm the
judgment of the District Court.
35