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United States of America v. Kenneth Schneider

September 21, 2011

UNITED STATES OF AMERICA
v.
KENNETH SCHNEIDER



The opinion of the court was delivered by: Juan R. Sanchez, J.

MEMORANDUM

On October 1, 2010, Defendant Kenneth Schneider was convicted by a jury of traveling in foreign commerce with the intent to engage in sex with a minor between the ages of 12 and 16, in violation of 18 U.S.C. § 2423(b) (Count I), and transporting a person in foreign commerce with the intent that such person engage in criminal sexual conduct, in violation of 18 U.S.C. § 2421 (the Mann Act) (Count II). Schneider asks this Court to enter a judgment of acquittal on both Counts, to dismiss the Indictment or arrest judgment, or to grant a new trial. For the reasons that follow, this Court will grant in part and deny in part Schneider's motion.

FACTS*fn1

The charges against Schneider, an American citizen who, in 2001, was 36 years old, stem from his travel on August 22, 2001, from the United States to Russia in the company of Roman Zavarov, a 15-year-old Russian boy. At the time of his travel, Schneider had housed Zavarov in his Moscow apartment for three years and, during the year immediately preceding the flight, had engaged in regular sexual activity with him.*fn2

Schneider first met Zavarov in 1998 when Zavarov was 12 years old. Zavarov had recently been forced to leave a prestigious ballet training program in Russia at the Moscow Academy of Ballet (the Academy)--also known as the Bolshoi Academy--after his parents became unable to pay his dormitory fees. Zavarov's parents wanted their son to continue his ballet training and considered sending him to a ballet school in St. Petersburg, where he had a scholarship. In the summer of 1998, however, two of Zavarov's former Academy instructors, Nikolai Dokukin and Tatiana Dokukina, raised the possibility of securing payment for Zavarov's education at the Academy from Schneider, a ballet afficionado, who had told the Dokukins he was interested in creating a charitable organization to provide scholarships to talented arts students in Russia.

At the time, Schneider was working in Moscow as an attorney and had became acquainted with the Dokukins because of his interest in ballet. After meeting the Dokukins, Schneider became involved at the Academy, donating furniture to the Academy, paying for ballet footwear for the students, and providing grants to the instructors. He also visited ballet classes at the Academy and videotaped the students, telling Dokukina he planned to send the videos to his friend, Olga Kostritzky, an instructor at the School of American Ballet. Within a month of meeting Schneider, Dokukina told him about Zavarov's financial troubles and asked if he would be willing to sponsor Zavarov's ballet education. Schneider indicated he might be interested, but told Dokukina he wished to meet Zavarov and see a demonstration of his ballet ability before agreeing to sponsor him.

Schneider and the Dokukins went to Zavarov's house and asked him to perform a number of ballet exercises. Schneider videotaped this demonstration, during which Zavarov was dressed in only a pair of black underpants.*fn3 During the demonstration, Dokukina told the Zavarovs, "if you show this recording, they will grab him for ballet and throw you into the bargain. They'll be asking where did you dig up this treasure?" Trial Tr. vol. 2, 41. Dokukina testified that having such a tape would provide Zavarov a "huge chance to be admitted to [a ballet] school." Id. at 60.

Zavarov's parents were interested in having Schneider finance their son's education and agreed to additional meetings with Schneider. During one of these meetings, Zavarov's father asked Schneider for a loan so that he could repay the debt he owed to the Academy for Zavarov's delinquent dorm fees. Schneider agreed, loaning Zavarov's father 4,300 rubles, approximately $470 at the time. A notary public in Russia drafted a loan agreement, which was signed by Schneider and Zavarov's parents, requiring the Zavarovs to repay the loan over four months, with the final payment due December 31, 1998.*fn4

At another meeting, Schneider told Zavarov's father that after Zavarov re-enrolled at the Academy he would not live in the dormitory, but would instead live with Schneider. Schneider explained he could provide better accommodations because Zavarov would have his own room in Schneider's apartment, would get better rest and better food, and would have access to a personal ballet instructor. Although this arrangement made Zavarov's father uncomfortable, he felt he had to agree to it to ensure his son was able to re-enroll at the Academy. Before Zavarov moved in, the Zavarov family visited Schneider's apartment, a two-room apartment with one small bedroom and a larger main room. Schneider told the Zavarovs he would sleep in the bedroom and Zavarov would sleep on a pull-out couch in the main room. The Zavarovs were satisfied that this was an appropriate sleeping arrangement for their son.

When the new school term started, Zavarov began living with Schneider from Monday to Friday, returning to his parents' home on weekends, holidays, and in the summer. Schneider discouraged Zavarov's father from visiting him during the week, telling him Zavarov had everything he needed. While at Schneider's apartment, Zavarov was primarily taken care of by a woman who lived across the hall from Schneider, Ludmila Kozyreva. Kozyreva woke Zavarov up, prepared his breakfast, helped him get ready for school in the morning, watched him after school, and prepared his dinner. Because the Zavarovs did not know Schneider well, Zavarov's father advised his son to tell Kozyreva if he was sexually molested by Schneider.*fn5 During the time Zavarov lived with Schneider, Schneider paid for his food and some of his clothing and purchased other items for Zavarov, including a Playstation video game console and a bicycle. Schneider also paid for Dokukin to provide private dance lessons to Zavarov in Schneider's apartment, and bought Zavarov a cellular phone.

In 2001, when Zavarov was 15 years old, Schneider encouraged Zavarov to apply to summer ballet programs in the United States and elsewhere, and offered to take Zavarov to Philadelphia so he could study at the Rock School. Zavarov testified that in the year before he and Schneider traveled to the United States, Schneider had been engaging in oral and anal sex with him approximately three to four times a week, with the encounters typically taking place at night in Schneider's bedroom.*fn6 Schneider told Zavarov to keep these encounters secret because people would not understand their relationship, and Schneider would go to jail.*fn7 Schneider also told Zavarov that if Schneider was gone, Zavarov "[wouldn't] be able to fulfill [his] dreams as a ballet dancer and [would] stay in Russia." Trial Tr. vol. 1, 16.

Zavarov also testified that Schneider had previously told him their relationship was similar to the relationship of the famous Russian ballet dancer, Vaslav Nijinsky, and his mentor and director, Sergei Diaghilev. When Zavarov was 13, Schneider showed him Nijinsky, a film that depicts Diaghilev and Nijinsky as lovers, and suggests that Nijinsky was emotionally destroyed after he ended his relationship with Diaghilev to pursue a heterosexual marriage.*fn8 After the film, Schneider told Zavarov that Nijinsky made a mistake by leaving Diaghilev, and warned him not to make the same mistake. Schneider also told Zavarov relationships with girls were disgusting, and Zavarov should avoid girls because they would take advantage of him. That same year, Schneider gave Zavarov a birthday card inscribed with the message, "Romanicov, until trillion thirty years, your friend, Ken," and told Zavarov they should be together "until trillion thirteen years." Trial Tr., vol. 1, 18. Before they traveled to the United States, Zavarov thought of Schneider as his friend and role model. In an essay he wrote as part of a school application, Zavarov said Schneider had made him very happy by re-enrolling him in the Academy and by helping him with any problems he had, and described Schneider as a "friend" and "second father." Trial Tr. vol. 1, 141.

Schneider helped Zavarov complete his application for the Rock School, which admitted Zavarov to its summer program and awarded him a scholarship, which paid for Zavarov's travel to and from Philadelphia. After his acceptance to the summer program, Zavarov and his parents went to the United States Embassy in Moscow to apply for a travel visa. In the application, Zavarov's parents authorized Schneider to take Zavarov to the United States from July 4, 2001, until August 31, 2001. When Schneider and Zavarov traveled to Philadelphia, Zavarov stayed with Schneider's parents at their home in Berwyn, a suburb of Philadelphia. Schneider did not stay at the Berwyn home for the summer because he was traveling for work, although he visited Zavarov there occasionally. While Schneider and Zavarov were in United States, they did not engage in any sexual activity, though Schneider held Zavarov's hand, hugged him, and kissed him once.

On August 22, 2001, Schneider and Zavarov flew from Philadelphia to Moscow. After arriving in Moscow, Zavarov went to his parents' house and stayed with them for a week before he returned to school. When Zavarov returned to school and moved back into Schneider's apartment, the sexual activity between Schneider and Zavarov resumed, and continued to occur two to three times per week.

Zavarov never told his parents that he had been sexually abused by Schneider. After he began living with Schneider, however, his personality changed. His father noticed he was more withdrawn and silent, and seemed to be keeping something to himself. Zavarov eventually moved to the United States and, in 2008, Zavarov told his girlfriend, Gina D'Amico--whom he has since married--about Schneider's sexual molestation, revealing that Schneider had sexually abused him while he lived with Schneider in Russia.

On August 12, 2008, Zavarov filed a civil lawsuit against Schneider and others, bringing claims stemming from Schneider's sexual abuse. After Zavarov filed his lawsuit, he was contacted by the Federal Bureau of Investigation, which thereafter launched a criminal investigation into Schneider's conduct with Zavarov. On January 14, 2010, Schneider was charged in a two-count indictment with (1) traveling in foreign commerce for the purpose of engaging in sex with a minor, in violation of 18 U.S.C. § 2423(b) (Count I), and (2) transporting a person in foreign commerce with the intent that such person engage in criminal sexual conduct, in violation of 18 U.S.C. § 2421 (Count II). Schneider was convicted of both charges on October 1, 2010, following a jury trial. DISCUSSION

Schneider asks this Court to enter a judgment of acquittal on both Counts, arguing the evidence presented at trial was insufficient to support the verdict on either Count. In the alternative, he seeks dismissal of the Indictment, contending this Court lacks jurisdiction over the offenses charged and the statutes he is charged with violating are facially unconstitutional and unconstitutional as applied to him. Finally, Schneider argues the introduction of unduly prejudicial evidence at trial entitles him to a new trial.

A court "must enter a judgment of acquittal of any offense for which the evidence is insufficient to sustain a conviction."*fn9 Fed. R. Crim. P. 29(a). A court must find the evidence at trial was insufficient to sustain a conviction if a rational trier of fact could not have found proof of guilt beyond a reasonable doubt. United States v. Brodie, 403 F.3d 123, 133 (3d Cir. 2005). In reviewing the sufficiency of the evidence, a court must not "usurp the role of the jury by weighing credibility and assigning weight to the evidence, or by substituting its judgment for that of the jury" and should only find insufficient evidence "where the prosecution's failure [to prove its case] is clear." Id.

Schneider argues the evidence at trial was insufficient to sustain his convictions because the Government failed to prove (1) a dominant purpose of his travel and transportation of Zavarov was illegal sexual activity, (2) he transported Zavarov with intent to violate Article 133 of the Russian Criminal Code, (3) and he intended to compel Zavarov to engage in sexual activity, because (4) Zavarov was materially or otherwise dependent upon him.

Schneider first asserts the evidence at trial was insufficient to sustain his convictions because a rational jury could not have determined he traveled and transported Zavarov for the purpose of illegal sexual activity. Count I of the Indictment charged that Schneider traveled in foreign commerce on August 22, 2001, "for the purpose of engaging in any sexual act;" specifically, for the purpose of engaging in a sexual act with Zavarov, a person who had reached the age of 12 but had not yet reached the age of 16. Indictment Count I ¶ 6. At the close of trial, this Court instructed the jury that in order to prove Schneider was guilty of Count I, the Government must prove beyond a reasonable doubt (1) Schneider was a United States citizen, who (2) traveled in foreign commerce on August 22, 2001, (3) for the purpose of engaging in sexual activity with a minor, and (4) the specific sexual act he intended to engage in was a sexual act with someone between the age of 12 and 16. See Trial Tr. vol. 8, 140, Sept. 30, 2010. Schneider does not contest that he is a United States citizen who traveled from the United States to Russia on August 22, 2001, or that Zavarov was 15 on the date of travel. Instead, he argues the Government did not present sufficient evidence to prove the purpose of his travel was to engage in illegal sexual conduct.

To secure a conviction pursuant to § 2423(b), the Government is not required to prove criminal activity was "the dominant purpose of interstate travel." See United States v. Hayward, 359 F.3d 631, 638 (3d Cir. 2004). Instead, when multiple motives for interstate travel exist, the Government must prove illegal sexual activity was "a dominant purpose" of the defendant's travel. Id.; see also United States v. Vang, 128 F.3d 1065, 1072 (7th Cir. 1997) (explaining "[d]espite the contrary implication suggested by the word 'dominant,' an immoral purpose need not be the most important of defendant's reasons when multiple purposes are present" (quoting United States v. Snow, 507 F.2d 22, 23 (7th Cir. 1974)); United States v. Campbell, 49 F.3d 1079, 1082-83 (5th Cir. 1995) (holding, with regard to a § 2421 conviction, a jury may find a "dominant purpose" to engage in illegal activity existed when such activity is "'one of the efficient and compelling purposes'" or "one motivating purpose" of the defendant's travel (citation omitted)).*fn10 In evaluating whether trial evidence proved an illicit travel purpose in "cases in which the travel prosecuted under [ยง] 2423(b) may have had dual purposes, only one of which was to have sex with ...


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