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United States v. Schneider

United States District Court, E.D. Pennsylvania

September 6, 2019

UNITED STATES OF AMERICA
v.
KENNETH SCHNEIDER

          MEMORANDUM

          Juan R. Sánchez, C.J.

         The origins of this prosecution can be traced to the years-long unsupervised relationship between an American lawyer and Russian boy, plucked from his home by promises of elite ballet training, and their travels between Russia and the United States. The boy claimed the lawyer regularly abused him during their time together, and the lawyer denied it. The jury heard from both and believed the boy, finding the lawyer-Defendant Kenneth Schneider-guilty on both counts of the indictment.[1] His direct appeals exhausted, Schneider is back before this Court seeking an order vacating his conviction and sentence and dismissing the indictment pursuant to 28 U.S.C. § 2255. He claims the process resulting in his conviction was defective in thirteen separate ways, nearly all of which center on his legal team's purported ineffectiveness before this Court and the U.S. Court of Appeals for the Third Circuit. The Court is not persuaded any of these alleged errors warrant the extraordinary relief Schneider seeks. Because the Court finds Schneider's counsel was not constitutionally ineffective and Schneider's rights were not otherwise violated, the Court will deny the Motion in its entirety without an evidentiary hearing and without granting a certificate of appealability.

         FACTS[2]

         This case stems from Defendant Kenneth Schneider's sexual abuse of an underage Russian ballet student, the years Schneider and the child shared an apartment in Moscow, Russia, and their travel between the United States and the Russian Federation on August 22, 2001.[3] On January 14, 2010, a grand jury in the Eastern District of Pennsylvania returned a two-count indictment against Schneider, charging him in Count 1 with traveling for the purpose of engaging in sex with a minor, in violation of 18 U.S.C. § 2423(b), and in Count 2 with transporting a person for criminal sexual conduct, in violation of 18 U.S.C. § 2421. See Indictment, Jan. 14, 2010, ECF No. 3.

         After extensive motion practice, [4] including over the parties' respective abilities to obtain certain evidence and testimony from Russia, this matter proceeded to jury trial on September 20, 2010. The Government's case lasted five days. It called a number of witnesses, including the victim, the victim's parents, the Government agent who investigated Schneider's misconduct, and one of the victim's ballet teachers at the elite Bolshoi Academy (who was partially responsible for introducing the victim to Schneider). The Government also called Schneider's housekeeper and neighbor, who appeared by live video feed from the inside of a Russian government building.

         After the Government rested, Schneider moved for judgment of acquittal pursuant to Federal Rule of Criminal Procedure 29(a). The Court denied the motion as to Count I and reserved ruling on as to Count II. Schneider's legal team then put on his own case, which was nearly as extensive as the Government's case-in-chief. He took the stand in his own defense and called a number of additional witnesses, including various members of his family (who were parties to the companion civil litigation between the victim and Schneider, but not named in the criminal case), the victim's civil counsel and therapist, another young Eastern European boy who had traveled extensively with Schneider, and the victim's wife and mother-in-law, who were involved in the victim's decision to come forward. Schneider was unable to call his Russian teacher or the former vice-rector of the Bolshoi Academy, both of whom he claims would have provided exculpatory testimony.

         On the ninth day, the jury returned a guilty verdict on both counts of the indictment. Schneider's counsel renewed their motion for judgment of acquittal, which the Court ultimately granted on Count II, but denied on Count I. See Order, Sept. 21, 2011, ECF No. 175. A sentencing hearing was conducted on November 30, 2011, and December 1, 2011. The Court imposed a sentence of 180 months' incarceration, three years of supervised release, a special assessment of $100, a fine of $20, 000, and restitution of $30, 000. See J. & Commitment Order, Dec. 13, 2011, ECF No. 212. On January 17, 2012, Schneider appealed the Judgment and Commitment Order. See Notice of Appeal, Jan. 17, 2012, ECF No. 220.

         While the appeal was pending before the Third Circuit, Schneider sought a new trial based on evidence produced during the civil case, which, purportedly, established the victim perjured himself during his testimony at Schneider's criminal trial. See Mot. for New Trial, Aug. 20, 2012, ECF No. 247. On February 13, 2013, the Court denied the motion, and, again, Schneider appealed. See Notice of Appeal, Feb. 21, 2013, ECF No. 263. After hearing argument on both of Schneider's appeals, the Third Circuit affirmed both the Judgment and Commitment Order and the Order denying Schneider's request for a new trial. See Judgment, Sept. 9, 2015, ECF No. 295. The Supreme Court subsequently denied certiorari on February 29, 2016. See Schneider v. United States, 136 S.Ct. 1217 (2016).

         On February 28, 2017, Schneider timely filed the instant Motion to Vacate, Set Aside or Correct a Sentence By a Person in Federal Custody Pursuant to 28 U.S.C. § 2255 (the Motion). The matter is now ripe for a decision.

         DISCUSSION

         Pursuant to 28 U.S.C. § 2255, a prisoner in federal custody or may seek to have his sentence vacated, set aside, or corrected if it was imposed in violation of the Constitution or laws of the United States, or is otherwise subject to collateral attack. Here, Schneider claims his sentence was imposed in violation of his Sixth Amendment right to the effective assistance of counsel, and his due process rights under the Fourteenth Amendment. The Court will address the grounds for relief in the order in which they appear in Schneider's motion. In so doing, the Court “must accept the truth of the movant's factual allegations unless they are clearly frivolous on the basis of the existing record.” United States v. Tolliver, 800 F.3d 138, 141 (3d Cir. 2015).

         All but two of Schneider's assert claims for violation of his Sixth Amendment right to the effective assistance of counsel, see U.S. Const. amend. VI. (“In all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defence.”), and so the Court begins by discussing the legal standard applicable to those claims. A criminal defendant establishes a viable claim for violation of his Sixth Amendment right by producing evidence (1) counsel's performance fell below an objective standard of reasonableness (the “performance” prong) and (2) the deficient performance resulted in prejudice to the defendant (the “prejudice” prong). Strickland v. Washington, 466 U.S. 668, 687 (1984).

         To satisfy the performance prong, a petitioner must show his counsel's conduct fell below an objective standard of reasonableness. Id. at 688. When evaluating counsel's performance, there is a “strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.” Id. at 689. The mere fact that a tactic has been unsuccessful does not necessarily indicate such a tactic was unreasonable, and a court cannot use the benefit of hindsight to second-guess tactical decisions. Id. at 690; see also Diggs v. Owens, 833 F.2d 439, 444-45 (3d Cir. 1987) (“An attorney is presumed to possess skill and knowledge in sufficient degree to preserve the reliability of the adversarial process and afford his client the benefit of a fair trial. Consequently, judicial scrutiny of an attorney's competence is highly deferential.”). Indeed, it is “only the rare claim of ineffective assistance of counsel that should succeed under the properly deferential standard to be applied in scrutinizing counsel's performance.” United States v. Gray, 878 F.2d 702, 711 (3d Cir.1989).

         To satisfy the prejudice prong, “[t]he defendant must show that there is a reasonable probability that, but for counsels' unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 694. This standard requires the petitioner to show more than “that the errors had some conceivable effect on the outcome of the proceeding.” Id. at 693. Rather, those errors must be of sufficient magnitude “to undermine confidence in the outcome” of the trial. Id. at 694. In ruling on a § 2255 motion, a court may address the prejudice prong first “and reject an ineffectiveness claim solely on the ground that the defendant was not prejudiced.” Rolan v. Vaughn, 445 F.3d 671, 678 (3d Cir.2006).

         Claim I involves Schneider's counsels' use of an article appearing in the Russian newspaper, Kommersant, accusing Schneider of being a homosexual and pedophile, see Mot. A.3 (“They assure that one American, Mr. Schneider, who is a pedophile and homosexual, has started playing a big role in the school.”), which was later retracted by the newspaper, see Id. A.5 (“On April 10, 2002[, ] . . . groundless and unfair accusations were made against U.S. citizen Kenneth Schneider, who was financially and [in] other way[s] assisting [the Bolshoi Academy].”).[5] Schneider argues there was no conceivable trial strategy for which the Kommersant article was helpful and, absent its frequent use, the outcome would have been different. He argues further that if the basis for introducing the article was to show Schneider had previously been cleared by Russian authorities, counsel's failure to produce the available evidence of that fact was constitutionally deficient. None of these arguments is persuasive.

         Schneider's reliance on a number of out-of-context references is misplaced. Nearly every reference to the article by his counsel was accompanied by reference to the retraction of the article, thus curing whatever prejudice may have resulted from reference to the unfounded allegation in isolation. However, the Court need not decide this aspect of the Motion on the prejudice prong alone because the Court is satisfied its repeated reference was in the service of counsel's trial strategy, and thus Schneider's claim also fails on Strickland's performance prong. As the Government points out, it was reasonable for counsel to cite the article and its retraction in order to preempt the Government's reliance on the document, as well as to try to: (1) establish Schneider was being unfairly targeted; (2) demonstrate no one-including the victim, his parents, or other individuals regularly in contact with him-actually believed Schneider was a pedophile at the time the article came out; and, (3) garner sympathy for Schneider. As a result, the Court also finds the use of the Kommersant article did not fall below an objective standard of reasonableness, and thus Schneider has failed to meet his burden under Strickland's performance prong. Relief will be denied on Claim I.

         In Claim II, Schneider asserts his counsel was ineffective because he conceded Schneider's guilt. As evidence, Schneider points to his counsel's argument that the Government failed to show that the dominant purpose of the 2001 return trip to Moscow was sexual, Tr. 1.45, and that under Russian law, the victim was not “materially dependent” on Schneider, Tr.8.106-07. In other words, Schneider claims his counsel was constitutionally ineffective by making arguments in favor of acquittal rather than solely denying any sexual contact between Schneider and the victim ever occurred. Relief is not warranted.

         First, Schneider's gloss on counsel's arguments is not supported by the record. At no time-including when arguing that the Government failed to satisfy its burden on other elements of the crimes charged-did counsel ever concede Schneider's guilt. Indeed, counsel, in both his opening and closing arguments, repeatedly proclaimed Schneider's innocence and sought to undermine the victim's credibility. See e.g., Tr. 1.30 (“Ken denies it, absolutely, and he will tell you so.”); 1.43 (“Ken didn't offer to pay any money [after receiving the victim's civil demand], ‘cause he didn't do anything wrong . . . he's endured a horrific two years that you'll hear about, but he's endured it, cause he did nothing wrong.”); 8.74 (“And when you first hearing something like this, you must think it's true, who would make this up? Why would anybody make this up? You heard about twenty million reasons why people would make this up.”); Tr. 8.95 (“Does it make sense that he's going to call [the Bolshoi medical staff] out like that at a time when he's raping a child across the street? I'd suggest that's unlikely.”); Tr. 8.108 (“He didn't pay these people off. He didn't offer them ten cents and the reason, it's because he didn't do anything and he's counting on justice.”). As Schneider concedes, his trial was ultimately a credibility contest between he and the victim, and counsel aggressively sought to undermine the victim's version of events.

         Second, the Court also rejects Schneider's argument counsel was ineffective for conceding, during his closing, that characterizing the charges against Schneider as “made up, is maybe, too strong.” Mot. 19 (quoting Tr. 8.106). The Court is not persuaded Schneider met his burden on either Strickland's prongs. The Court can envision a number of strategies such a conciliatory gesture might serve, including ingratiating counsel with the jury (something he sought to do repeatedly throughout the trial[6])-especially important where, as was true in this case and Schneider concedes, the case turned on credibility determinations. See Tr. 1.30 (“Ken Schneider did not assault [RZ], they say he did; he says he didn't, you'll have to decide, that's what this case is about.”).[7] The Court is also not persuaded that the comment caused Strickland-level prejudice. As noted above, counsel repeatedly proclaimed Schneider's innocence and attacked the victim's credibility.[8] In light of that strategic decision, counsel's single off-hand comment which only of the lawyers is appropriate or not, that's not appropriate, I'd suggest. What's appropriate is to look at the evidence in the courtroom . . . And I'd like to invite you to look at the evidence in this case, not the emotions, look at the evidence.”). The Court is also persuaded by the Government's argument with respect to Strickland's prejudice prong. Although not all aspects of counsel's cross examination were necessarily helpful-particularly those questions about the limitations on Arnold's investigation, which could reasonably be construed to support the inference other victims might have been out there-on the whole, the Court does not find this single line of questioning, which was part of an extended cross examination, was so damaging as to undermine confidence in the jury's unanimous verdict. For these reasons, the Court will deny Schneider's second claim for relief.

         Claim III attacks his counsel's decision to call two witness, a therapist who had attempted to treat the victim, Christina Bates, and the victim's attorney in the parallel civil proceedings, E. William Hevenor. Although the Court questions whether the testimony of these witnesses was helpful to Schneider's defense, it will nevertheless deny relief because counsels' decision to call these witnesses did not fall below an objective standard of reasonableness.

         Regarding the decision to call Bates, the victim's therapist, Schneider argues counsel was ineffective because aspects of her testimony corroborated the victim's claimed trauma. Schneider specifically focuses on Bates's testimony that the victim related to her that a “trigger for him was when his wife would approach him from behind, maybe, to come up behind him and hug up to him, that was very bothersome for him.” Tr. 6.37. She testified further this “was the only trigger he reported to me that I noted was a direct influence or result of his reported molestation.” Id. Schneider claims this testimony bolstered the Government's case by corroborating the victim's testimony and was based on “ignorance of the sequelae of trauma.” Mot. 26. Schneider also complains his counsel's decision to call Bates created the opportunity for the Government to cross Bates in a way that confirmed the victim suffered many of the classic signs of trauma-inadequate eye contact, soft voice, flat affect, and a difficult time volunteering information. See Mot. 27-28.

         The Court will not grant Schneider's request for relief on this claim. On balance, the Court agrees that Bates's testimony was likely more harmful to Schneider than it was helpful.[9] Nevertheless, because counsels' decision to call her in the original instance was reasonable, Schneider's claim fails on Strickland's performance prong. As Schneider states in his Motion, “[p]resumably, counsel called Ms. Bates to establish that [the victim] would not disclose pertinent information about the history of abuse, thereby casting doubt on the accusations of sexual molestation.” Mot. 26. A review of the transcript leaves nothing to presume; it is obvious this was counsel's strategy. See, e.g., Tr. 6.35 (“Q. What - if anything - was remarkable about that initial intake appointment? A. I - I remarked that his wife, Gina had answered most of the questions for the client”); id. (“Q. Now, over the course of those seven therapy sessions, did you have any difficulty securing information from [RZ]? A. Yes, I did.”). Risky as this strategy might appear in hindsight, the trial hinged on the victim's credibility and it was reasonable for Schneider's counsel to attack it by calling the victim's treating therapist to suggest the victim had not been forthright. As a result, the Court will deny this aspect of Schneider's request for relief.

         The Court will also deny Schneider's request for relief to the extent it is premised on counsels' decision to call E. William Hevenor, the victim's civil counsel. The primary thrusts of Schneider's argument are that counsel's decision to call Hevenor (who his counsel declined to treat as hostile) prejudiced Schneider by (1) creating the opportunity for Hevenor to express his obvious contempt for Schneider and (2) questioning Hevenor in a way which undermined the credibility of Schneider's parents, who had testified earlier on his behalf.

         The Court will deny relief on this aspect of Schneider's claim because he has not satisfied Strickland's performance prong. Again, as with Bates's testimony, Hevenor's testimony was probably not as helpful to Schneider as his counsel may have hoped. Indeed, the guilty verdict suggests counsel's attempts to use Hevenor's testimony to establish a motivation for the victim to fabricate his claims was unsuccessful. However, counsels' decision to call Hevenor in the service of this strategy-regardless of whether Hevenor was treated as a hostile witness-was reasonable. As has been noted throughout, Schneider's counsel repeatedly framed the matter as a credibility contest between Schneider and his victim. Hevenor's testimony regarding the value of the civil case was clearly germane to Schneider's counsel's attempts to show the victim was motivated by the prospect of a large civil award, and not because Schneider had actually abused him. Similarly, Hevenor's testimony as to his involvement in the victim's mental health treatment, which counsel suggested was for the purpose of finding a more litigation-friendly provider, was also clearly related to counsel's attempts to undermine the victim's credibility. Ultimately, Schneider's complaint is really about Hevenor's lack of cooperation on the stand, and a series of unresponsive outbursts in which Hevenor expressed his clear disdain for Schneider. However, by its very nature, counsel could not have anticipated Hevenor's indecorous conduct (especially for a member of the bar), and thus cannot be found ineffective for calling him on this basis.[10]

         Schneider also takes issue with a portion of Hevenor's questioning related to Schneider's parents, Marjorie and Bernard, who had previously testified on their son's behalf. Specifically, he claims his counsel's attempts to question Hevenor about his investigation into the merits of the victim's civil case undermined Marjorie and Bernard's testimony. Having reviewed the testimony at issue, it is readily apparent counsel was attempting to probe Hevenor's factual basis for filing the civil claims against Marjorie and Bernard, as well as Schneider's sister, Susan (about whom counsel had questioned Hevenor immediately beforehand). Doing so was reasonable in light of the connection between the civil case against Schneider-in which Marjorie, Bernard, and Susan, were named-and the criminal prosecution. That Hevenor did not provide answers counsel could then use does not mean his questioning was deficient. Even if Schneider's claim succeeded on Strickland's performance prong, the Court would nevertheless decline to grant relief because Schneider has failed to establish that, had counsel not asked these questions, the result of the trial may have been different (i.e., success on the prejudice prong). Despite Schneider's argument to the contrary, no reasonable review of the testimony at issue supports his position that counsel's questioning “provided powerful corroboration of . . . an uncharged conspiracy involving other members of [Schneider's] family.” Mot. 29-30. Schneider's request for relief on this basis will, therefore, be denied.

         In Claim IV, Schneider alleges counsel's deficiency with respect to the “innocent round trip” exception stated in Mortensen v. United States, 332 U.S 369 (1944) and its application to Schneider's charge for violation of 18 U.S.C. § 2423(b). More specifically, Schneider claims counsel was ineffective for failing to (1) object to the “dominant purpose” instruction, which he claims improperly split his trip into two parts, Mot. 35; (2) request an instruction on the innocent round trip exception, which he claims was required to cure the prejudice caused by the “dominant purpose” instruction's improper severing of his trip id. 36; and, (3) present “readily available evidence” in support of the innocent round trip exception, id. 38. None of Schneider's allegations warrants relief.

         Each of the three sub-grounds Schneider relies upon would require this Court to extend the innocent round trip exception from its traditional confines as an exception to a violation of 18 U.S.C. § 2421 (which the Court applied to dismiss one of Schneider's convictions, post-trial) to a violation of 18 U.S.C. § 2423(b). This is the third time Schneider has asked a Court to do so (although the first in this procedural posture), and because it is the third time, the Court need not repeat the exhaustive treatment the issue received both before this Court and the Third Circuit. See United States v. Schneider, 817 F.Supp.2d 586, 599 (E.D. Pa. 2011) (noting “the rationale of Mortensen does not apply, and it is not improper to focus only on Schneider's intent in making the trip from Philadelphia to Russia”), aff'd, 801 F.3d 186, 195 (“Because the trip was part of Schneider's calculated plan to manipulate and abuse the victim, the Mortensen exception is inapplicable.”). It suffices to say Schneider's counsels' failure to undertake certain actions based on law that does not apply cannot serve as the basis for a claim for the ineffective assistance of counsel. Claim IV will be denied.

         In Claim V, Schneider asserts he is entitled to relief based on counsel's purported failure to object to four different instances of prejudicial testimony. Specifically, he claims his counsel should have objected to (1) the victim's father's insinuation that homosexuality equated to pedophilia; (2) the victim's mother's testimony stating she observed the victim making sexual motions in his sleep; (3) questions suggesting that, because he was not a ballet instructor, Schneider's presence at the Bolshoi Academy must have meant he was a pedophile; and, (4) testimony attempting to show Schneider supplanted the victim's parents' authority. Schneider also complains his counsel failed to refute testimony that Schneider “related” to the victim “in an inappropriately familiar manner.” Mot. 43. None of these grounds warrant relief.

         First, Schneider argues he is entitled to relief because his counsel interjected, and failed to intercede in the Government's attempts to interject, the inference that homosexuality equated with pedophilia. The Court is not persuaded. The animus from which the false equivalence between homosexuality and pedophilia stems is obvious-and discrediting-and so counsels' decision to allow the victim's father to express such prejudice, and later confirm it through Tatiana Dokukina, was reasonable.[11] Moreover, as the Government points out, whatever prejudice may have been worked was cured by the Court's instruction to the jury to “decide the facts from the evidence, ” Tr. 8.118, and the Court's admonishment to the jury that it not to be influenced by “any person's . . . sexual orientation, ” Tr. 8.119. Schneider's Strickland claim on this basis, therefore, fails on both the performance and prejudice prongs.

         Second, Schneider claims his counsel was deficient for failing to object to the victim's mother's testimony that she observed the victim making motions of an “obviously . . . sexual character” in his sleep. Tr. 2.134. This claim also fails on both the performance and prejudice prongs. The mother's observations were obviously relevant to whether Schneider was abusing her son, and counsels' decision not to make a meritless objection-which would have drawn more attention to a damaging piece of testimony-was thus reasonable. The Court also disagrees with Schneider's assertion that it would have granted an objection. Under even the most favorable circumstances, an objection would likely have resulted in the Court requiring the Government to lay a more thorough foundation for the mother's conclusion, such as by having her describe the precise motions she observed. Avoiding this unquestionably more damaging possibility by refraining from objecting was also reasonable. Moreover, Schneider's claim on Strickland's prejudice prong is undercut by the testimony of the victim's therapist, Christina Bates, who explained the victim had post-traumatic stress disorder which manifested as a fear of being approached from behind. Thus, even had the Court done exactly what Schneider claims it would have done (i.e., grant the objection and bar the mother's testimony), evidence of the victim's response to trauma would have been before the jury.

         Schneider also claims relief is warranted because his counsel failed to object to the Government's attempt to establish he was a pedophile by eliciting testimony Schneider (1) was involved with the Bolshoi, notwithstanding his lack of formal ballet training, and (2) had, in the eyes of the victim's mother, supplanted her and her husband's parental authority. As to his involvement with the Bolshoi, Schneider offers no specific objection. At best, this ground for relief is merely a disagreement with the inference the Government asked the jury to make, i.e., he was involved with the Bolshoi to find and groom victims. His disagreement does not entitle him to relief. With respect to the mother's testimony, Schneider is somewhat more specific, positing the testimony was impermissible under Federal Rule of Evidence 701. But the isolated comment upon which Schneider relies is out of context. Considered as part of the larger line of questioning to which it belongs, it is clear the victim's mother's testimony is rationally based on her perception, helpful to understanding her testimony, and not based on any specialized knowledge within the scope of Rule 702. This ground for relief will be denied.

         The final aspect of this portion of Schneider's motion faults counsel for failing to rebut the Government's attempt to demonstrate Schneider and the victim conversed in an inappropriate manner by using the Russian language's familiar forms of address. The Court need not address whether Schneider has met Strickland's performance prong because Schneider has not made a compelling case on the prejudice prong. At best, the use of the familiar form was a piece of exceptionally weak circumstantial evidence supporting the Government's case. No. reasonable review of the trial transcript supports the conclusion that, had counsel drawn more attention to the issue by presenting the testimony of Schneider's translator, there is a reasonable probability the outcome might have been different. As a result, the Court finds Schneider has failed to establish the prejudice prong of the Strickland analysis and will deny relief on this basis.

         In Claim VI, Schneider claims he is entitled to relief because the Government violated his due process rights during its cross-examination of SG, [12] a Moldovan boy called as a defense witness.[13] Schneider alleges the Government knowingly prompted SG to lie on cross examination about aspects of Schneider's sponsorship of SG's trip to New Orleans, Louisiana, and thereby violated Schneider's due process rights under Napue v. Illinois, 360 U.S 264, 269 (1959). The Government opposes relief on this claim on the grounds SG's testimony was only “arguably” inconsistent with the statements SG, his sister, SaG, and mother, RG, provided during the investigation, and was consistent with a written statement RG provided on the eve of trial (which Schneider claims was never produced). The Court will deny relief on the merits because Schneider has produced no evidence to support the serious accusation he levels at the Government.[14]

         Because Schneider's claims involve allegations of perjury vis-à-vis SG's testimony concerning Schneider's purported hostility to SaG's presence during the New Orleans trip, including by initially refusing to pay for her tickets, the Court's analysis begins with an in-depth review of the written statements and trial testimony. On July 23, 2009, Special Agents Emily Arnold and Glenn Spindel conducted an interview of SG (then 13 years old), his sister, SaG (then 23 years old), and their mother, RG. See Opp'n Ex. A at 3. On August 4, 2009, Special Agent Arnold prepared a Report of Investigation (the Report) summarizing the information provided by the interviewees. See Id. at 1. Although the Report refers to each of the interviewees, the Report does not consistently identify which statements are attributable to which of the three interviewees. In a portion attributable to RG, SG's mother, RG recounts Schneider as asking whether SG “could attend summer school and perform in a concert in the United States.” Opp'n Ex. A at 3. According to the Report, “[RG] stated that she agreed to let [SG] travel to the United States if his sister, [SaG], accompanied him.” Id. Crucially, the Report explains further:

Schneider told the [Gs] to purchase the airplane tickets in Moldova, and that he would reimburse them. The [Gs] purchased the tickets for [SG] and [SaG] to travel to New Orleans. Schneider wrote a check to [SG] for the amount of the airplane tickets at some point during their stay in New Orleans.

Id. The Report also includes five paragraphs, which appear to reflect statements given by SG. Id. at 5-6. Although the statements describe the circumstances of his, his sister's, and Schneider's time in New Orleans (i.e., the things he did while there), they do not reference the crucial issues of who paid for the trip and whether Schneider was at all hostile to SaG's presence. Id.

         Finally, the Report includes statements which appear to be given by SaG, who, as noted, is SG's older sister and accompanied him on the trip to New Orleans. SaG recounted she first met Schneider after Schneider awarded SG a scholarship. During their correspondence, Schneider offered to arrange a trip to the United States for SG. “When it was planned for [SaG] to attend to supervise [SG], ” the Report states, “Schneider stated that it would be easier for [SaG] to obtain a visa if she was listed as a ‘Regional Coordinator' of the Apogee Foundation.”[15] Id. at 7. Of the issue of payment, SaG recounted,

When Schneider reimbursed [SG] with a check for the costs of the airline tickets to the United States, the [Gs] had a large amount of trouble cashing the check. Finally, family friends in Atlanta that the [Gs] visited before returning to Maldova helped them cash the check.

Id.

         Three days before the beginning of the trial in this matter, on September 17, 2010, RG gave a second statement to Special Agent Michael C. Ruibal. See Opp'n Ex. B at 1. The individuals present for this interview were RG, Special Agent Ruibal, Assistant United States Attorney ...


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