2015 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

9-9-2015

USA v. Kenneth Schneider

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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
2

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

______

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 preand 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.
3

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 
4

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. 
5

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.
6

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.
7

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.” 
8

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
9

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 twoweek 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 
10

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.
11

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.
12

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 
13

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 
14

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 
15

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 
16

“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).
17

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 
18

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, 
19

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, 
20

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
21

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
22

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.
23

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 
24

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).
25

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 
26

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.” 
27

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.
28

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.
29

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.
30

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] 
31

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 Foundation5in 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.
32

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 newlydiscovered “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 crossreference.
33

“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 crossreference 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 
34

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.
35

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.