United States v. Bollinger

• Decision Date: 19 August 2015
• Docket Number: No. 14–4086.,14–4086.
• Citation: 798 F.3d 201
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Larry Michael BOLLINGER, Defendant–Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

798 F.3d 201

UNITED STATES of America, Plaintiff–Appellee

v.Larry Michael BOLLINGER, Defendant–Appellant.

No. 14–4086.

United States Court of Appeals, Fourth Circuit.

Argued: May 13, 2015.

Decided: Aug. 19, 2015.

ARGUED:Anthony J. Colangelo, Southern Methodist University, Dallas, Texas, for Appellant. Amy Elizabeth Ray, Office of the United States Attorney, Asheville, North Carolina, for Appellee. ON BRIEF:Anthony G. Scheer, Rawls, Scheer, Foster, Mingo & Culp, PLLC, Charlotte, North Carolina, for Appellant.Anne M. Tompkins, United States Attorney, Office of the United States Attorney, Charlotte, North Carolina, for Appellee.

Before GREGORY and HARRIS, Circuit Judges, and HAMILTON, Senior Circuit Judge.

Opinion

Affirmed by published opinion. Judge GREGORY wrote the opinion, in which Judge HARRIS and Senior Judge HAMILTON joined.

GREGORY, Circuit Judge:

This case examines the constitutional limits of Congress's power to regulate the activities of U.S. citizens traveling and living abroad. Specifically, we consider whether Congress may prohibit individuals from engaging in non-commercial “illicit sexual conduct” after they “travel in foreign commerce.”

The district court upheld the legislation at issue, reasoning that Congress acted pursuant to its constitutional authority to implement an international treaty designed to combat the commercial sexual exploitation of children. For the reasons that follow, we affirm on different grounds and hold that the Foreign Commerce Clause provides constitutional sanction. We separately affirm the prison sentence imposed by the district court.

I.

Larry Bollinger, an ordained Lutheran minister, moved to Haiti in 2004 to oversee a large ministry outside of Port Au Prince with his wife. The religious center included a school that served hundreds of children (Village of Hope) and a gated compound for missionaries (Hope House).

Bollinger was also a sex addict who periodically frequented prostitutes in Haiti. In 2009, he began molesting young girls. The first was a 16– or 17–year–old who Bollinger sexually abused until he “caught her trying to steal a substantial amount of money from the ministry and kicked her out.” J.A. 93. A few months later, the minister began molesting three other girls, each 11–years–old. As Bollinger later described their first encounter, “some girls came to the [Hope House] compound and made themselves available and I took advantage of them.” J.A. 92. The minister engaged in sexual activity with the girls four times over a period of weeks. According to an account he later provided to the National Center for Missing and Exploited Children (“NCMEC”), the girls “came onto him sexually,” asked him to perform oral sex on them, and “wanted to have intercourse with [him].” J.A. 350–51. Bollinger admitted to fondling and performing oral sex on the girls but stated that he refused to have intercourse with them. Id. at 352.

In September 2009, Bollinger was in bed with another woman in Haiti when he received a phone call from his wife, who was in the United States. Bollinger confessed his infidelity and agreed to counseling. Approximately a week later, the minister traveled to Virginia to meet with the chair of the Lutheran organization that administered the Village of Hope. At the meeting, Bollinger acknowledged his sex addiction but failed to mention his molestation of underage girls.

The Bollingers then traveled to North Carolina where they had a telephone interview with Dr. Milton Magness, a Texas psychologist who treats clergy members who have sex addictions but are working to stay in their marriages. The couple scheduled a three-day in-person session with the psychologist, and Bollinger then returned to Haiti “because [they] had business ... [he] had to take care of.” J.A. 100. Bollinger later testified during sentencing that he did not have any further sexual contact with underage girls, although they “came to the gate numerous times” seeking help. J.A. 100.

In November 2009, the Bollingers attended the three-day intensive therapy session with Dr. Magness. During the minister's first individual session, he disclosed his sexual contact with the young girls in Haiti. Dr. Magness reminded Bollinger that the minister had signed an informed consent form, and that the psychologist would have to report any injuries to a child. Bollinger did not appear “overly concerned,” and he continued disclosing his sexual activity with children. J.A. 140. When asked whether he had engaged in similar activity with children in the United States, Bollinger “was adamant that he had not.” J.A. 147. Dr. Magness later testified that he did not understand at the time how Bollinger could “seem[ ] unconcerned about what was happening in another country, but be[ ] adamant about saying that he had not done anything like that in the U.S.” J.A. 147. The psychologist concluded that “perhaps [Bollinger] thought he was beyond the reach of the law because ... his behavior had taken place in another country.” J.A. 147–48.

Dr. Magness called the NCMEC to report the minister's confessed conduct, and the Bollingers joined the call to ensure the information provided was accurate. The psychologist also informed the couple that he could not help them further, because he did not treat sex offenders. Dr. Magness instead referred them to Sante Center for Healing, an in-patient program for sex addicts. Bollinger was admitted to Sante in December 2009, where he remained in treatment for 94 days. The treatment notes describe the minister as cooperative and productive. After his release, Bollinger moved back to North Carolina where he attended Sex Addicts Anonymous meetings until he was arrested.

A.

A grand jury indicted the minister on May 15, 2012, charging him with two counts of engaging in an illicit sexual act with a minor after traveling in foreign commerce, in violation of 18 U.S.C. §§ 2423(c) and (e). The defense filed a Motion for a Bill of Particulars, seeking clarification about whether the “illicit sexual conduct” alleged was non-commercial (as defined by 18 U.S.C. § 2246 ) or commercial (as defined by 18 U.S.C. § 1591 ). The government replied that it was alleging non-commercial conduct, and that it intended to prove that Bollinger gained access to his victims, in part, by providing them with food and clothing.¹

Bollinger moved to dismiss the indictment. He argued that Section 2423(c) is unconstitutional because it criminalizes non-commercial activity and thus exceeds Congress's authority to regulate commerce under the Foreign Commerce Clause. In reply, the government disagreed with Bollinger's interpretation of Congress's foreign commerce powers. It further argued that independent constitutional authority derived from Congress's power to implement an international treaty signed by the United States, namely, the Optional Protocol to the United Nations Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography, adopted May 25, 2000, T.I.A.S. 13,095, 2171 U.N.T.S. 227 [hereinafter Optional Protocol].

The district court denied Bollinger's motion to dismiss. The court declined to decide whether the Foreign Commerce Clause sanctioned Section 2423(c), but it agreed with the government that Congress had authority under the Necessary and Proper Clause to enact the statute as a rational means to implement the Optional Protocol.

Bollinger then entered a conditional guilty plea pursuant to Federal Rule of Criminal Procedure 11(a)(2), in which he reserved his right to appeal the denial of his motion to dismiss.

B.

Bollinger's presentence report (“PSR”) calculated a preliminary sentencing guideline term of life in prison, based on a total offense level of 43 and a criminal history category of I. The offense level included an 8–point enhancement based on the aggravated nature of the victim's ages, pursuant to U.S.S.G. § 2G1.3(b)(5). The probation officer correctly noted, however, that the two offenses carried a statutory maximum term of 30 years each. See U.S.S.G. § 5G1.1(a).

In further preparation for sentencing, the government submitted victim-impact statements from the four abused girls (denoted as CV1, CV2, CV3, and CV4) and their family members. CV2 wrote a letter stating:

I feel ashamed of myself, my family and my friends. Everybody is pointing fingers at me.... I am unable to look at people in the eyes.... I always have tears in my eyes. For me, I no longer exist.

J.A. 666. Similarly, CV3 stated that she was “ashamed” and that her “future is ruined.” J.A. 670. As CV3 concluded:

As for me, the best solution is to end my life. I don't like to talk about that because every time, I talk about it, it rips out my guts, my dreams are ruined, and it takes a toll on me. Since then, I can no longer do as well in school as I used to before, I can't even explain it to my family.

Id. CV4, meanwhile, wrote that her family was humiliated and that she spent little time outside of her home, an account corroborated by a letter from her uncle stating that the family was “like scars on the area.” J.A. 667, 669. Finally, CV1's mother reported that she and her daughter “have been living in the woods as a result” of the abuse. J.A. 668.

At the sentencing hearing, the district judge agreed with the PSR's calculation of a preliminary advisory term of life in prison, limited by the statutory maximum of 30 years for each of the two counts. The court proceeded to hear testimony regarding the sentencing factors codified in 18 U.S.C. § 3553(a). One witness, Marie Major, ran a Haitian orphanage near the Village of Hope. She testified that it is not unusual for impoverished girls in the area to offer themselves sexually in exchange for food. Major also testified that Bollinger and his wife provided generous and consistent support to the orphanage, including food and clothing. Another witness, Dr. William Tyson, testified that he believed Bollinger was not a pedophile and that the minister was a good candidate for...