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Bollinger v. United States

United States District Court, W.D. North Carolina, Charlotte Division

October 8, 2019

LARRY MICHAEL BOLLINGER, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          ORDER

          Robert J. Conrad, Jr., United States District Judge.

         THIS MATTER is before the Court on Petitioner's Motion to Vacate, Set Aside or Correct Sentence under 28 U.S.C. § 2255. [CV Doc. 1].[1] Also pending is the Government's Motion to Dismiss and Response, [CV Doc. 10], Petitioner's Pro se Status Report and Motion for Extension of Time to File Response/Reply, [CV Doc. 11], Petitioner's Request for Permission to Amend or Supplement Previously Submitted Pleading, [CV Doc. 14], Petitioner's Motion to Supplement Pleadings, [CV Doc. 15], and Petitioner's Pro se Request of Amend Pending 2255 Motion, [CV Doc. 21].

         I. BACKGROUND

         A. Petitioner's Underlying Criminal Conduct.

         In 2004, Petitioner Larry Michael Bollinger, an ordained Lutheran minister, traveled from his home in Gastonia, North Carolina, to Port Au Prince, Haiti, to direct the Lazarus Project, a ministry that includes a school that serves hundreds of children outside of Port Au Prince, known as the Village of Hope, as well as a gated compound, called Hope House, that includes residences and housing for missionary teams. [CR Doc. 52 at 11, 14-15, 21-22, 37: Tr. Sentencing Hearing; CR Doc. 39-1 at 8-9: Sealed Sentencing Memorandum, Ex. 1]. Between 2004 and the summer of 2009, Petitioner and his wife, Margaret Bollinger, spent most of the year in Haiti but maintained their home in Gastonia, coming home periodically when their work permitted or for board meetings or promotional speeches. [Doc. 52 at 86-87].

         For nearly all of his time as an ordained minister, Petitioner, who was married, frequented adult bookstores and ultimately began paying for sex with prostitutes, a pattern of behavior that continued as he moved from one congregation to the next, staying at each for between five and ten years. [CR Doc. 52 at 10, 12; Doc. 39-7 at 7, 15]. About a year-and-a-half after taking over responsibility for the Village of Hope, Petitioner began picking up prostitutes in Haiti, doing so regularly between 2006 and 2009. [Doc. 52 at 14-15, 17; Doc. 39-7 at 15].

         In 2009, Petitioner moved from frequenting adult prostitutes to molesting young girls. From early in Petitioner's tenure with the Village of Hope, girls knocked on the gate of the compound, asking to be fed before school. [CR Doc. 52 at 18-19]. In the Spring of 2009, Petitioner began having sexual contact with a 16- or 17-year-old girl, which continued until he “caught her trying to steal a substantial amount of money from the ministry and kicked her out.” [CR Doc. 52 at 18; CR Doc. 39-1 at 3]. According to Petitioner, he touched the first victim sexually and she masturbated him but refused to perform oral sex on him. [CR Doc. 39-1 at 3]. In August of 2009, as Petitioner later described it, “some girls came to the [Village of Hope] compound and made themselves available.” [CR Doc. 52 at 17, 59; CR Doc. 39-7 at 7-8]. Each of those girls was 11-years old and, on four different occasions, Petitioner engaged in sexual activity with them, performing oral sex on them, fondling them, rubbing his penis on their genitals until he ejaculated, and having them masturbate him, though not all of this sexual activity occurred on each occasion. [CR Doc. 52 at 17, 50-55; CR Doc. 39-1 at 4-7, 10-11; CR Doc. 39-6 at 3-5; CR Doc. 39-7 at 15]. According to Petitioner's report to National Center for Missing and Exploited Children (NCMEC), these girls “came onto him sexually, ” “begged [him] to perform oral sex on them, ” and “wanted to have intercourse with [Petitioner], ” but he refused to have intercourse. [CR Doc. 52 at 51-52; CR Doc. 39-1 at 4; CR Doc. 39-6 at 4; see also CR Doc. 39-7 at 7; Doc. 43-7 at 3: Sealed Sentencing Memorandum, Ex. 7].

         On September 27, 2009, while Petitioner was in bed with another woman, he received a telephone call from his wife, who was at their home in Gastonia. [CR Doc. 52 at 22, 89]. Petitioner's wife told Petitioner that she had had a restless night and wanted to know if he had been cheating on her. [Id.]. Petitioner confessed that he had, explaining to her that “he had been picking women up on the street and that he just couldn't stop, ” and agreed to counseling. [Id. at 22-23, 90]. About a week later, Petitioner traveled to Virginia to meet with the chair of the Lutheran organization that administered the Village of Hope, confessing that he had an addiction to sex but omitting any mention of his molestation of young girls. [Id. at 23-24].

         Petitioner then went to North Carolina, and he and Ms. Bollinger had a telephone interview with Dr. Milton Magness, a psychologist in Houston, Texas, who specializes in treating clergy members who have sex addictions but are working to stay in their marriages. [Id. at 22, 24-25, 62]. Petitioner and his wife scheduled a three-day session with Dr. Magness for mid-November 2009, and shortly after that interview, in early October, Petitioner returned to Haiti “because [they] had business . . . [he] had to take care of.” [Id. at 24-25]. Petitioner testified during his sentencing hearing that he did not have any further sexual contact with any of the young girls in Haiti after his return, although “[t]he girls came to the gate numerous times[, ] . . . still seeking . . . help.” [Id. at 25].

         Petitioner left Haiti in mid-November 2009 and traveled to Houston, where he and Ms. Bollinger had a three-day intensive session with Dr. Magness. [Id. at 26, 63]. During Petitioner's first individual session with Dr. Magness, he told Dr. Magness about his sexual contact with the young girls in Haiti. [Id. at 27-29]. Dr. Magness stopped him during that session and reminded Petitioner that he had earlier signed an informed consent form and that Dr. Magness would have to report any injuries to a child. [Id. at 64]. Not appearing “overly concerned, ” Petitioner continued disclosing his sexual contacts, including his contacts with the girls in Haiti. [Id. at 64-65]. When asked whether he had had any sexual contact with children in the United States, Petitioner “was adamant” that he had not. [Id. at 72]. Dr. Magness later testified that “at that point” he did not understand how Petitioner 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 [United States], ” ultimately concluding that “perhaps he thought he was beyond the reach of the law because . . . his behavior had taken place in another country.” [Id. at 72-73]. After Petitioner completed his disclosures and made the same disclosures to Ms. Bollinger, Dr. Magness called the National Center for Missing and Exploited Children (“NCMEC”), and both Petitioner and Ms. Bollinger joined the call to ensure that the information provided to NCMEC was accurate. [Id. at 74-75, 93].

         Informing Petitioner and Ms. Bollinger that he could not help them further, because he did not treat sex offenders, Dr. Magness referred Petitioner to Sante, an in-patient treatment program for sex addicts near Dallas, Texas. [Id. at 35, 63, 66, 70, 96]. Learning that Sante did not have a bed immediately available, Petitioner decided, against the strenuous advice of Dr. Magness and the advice of the NCMEC representative, to return to Haiti. [Id. at 77-78, 96; CR Doc. 39-1 at 12; CR Doc. 43-7 at 4). According to Dr. Magness, because Petitioner made a point of saying that the children in Haiti had initiated all sexual contact, he was concerned that Petitioner would make himself available and “believed that he was not at fault because he didn't initiate” the sexual contact. [CR Doc. 52 at 77-78]. Petitioner testified that he did not re-offend during his final stint in Haiti and was admitted at Sante in December 2009, where he stayed in treatment for 96 days. [Id. at 36-37; CR Doc. 39-7 at 23]. Following his release from the in-patient program at Sante, Petitioner moved back to Gastonia, where he began attending Sex Addicts Anonymous meetings, meetings he continued attending until he was arrested. [Doc. 52 at 39, 99-100].

         B. Petitioner's Indictment and Guilty Plea.

         Petitioner was ultimately indicted by a federal grand jury and charged with two counts of traveling in foreign commerce and engaging in illicit sexual conduct with a minor, in violation of 18 U.S.C. § 2423(c) and (e). [CR Doc. 1]. Seven months after he was charged, Petitioner filed a motion for a bill of particulars, requesting that the Government specify the identity of the victims, as well as whether Petitioner was alleged to have engaged in sexual acts as defined in 18 U.S.C. § 2246 or commercial sexual acts as defined in 18 U.S.C. § 1591. [CR Doc. 18].

         In response, the Government identified the two minors, one denominated as CV3 in investigative reports whose date of birth was May 10, 1997, and the other denominated as CV2 in investigative reports whose date of birth was February 17, 1998. [CR Doc. 20]. The Government noted that it intended to prove that Petitioner gained access to his victims by providing them and other local children with food and clothing and engaged in sexual acts with them, as defined in 18 U.S.C. § 2246. [Id.].

         Thereafter, Petitioner moved to dismiss the indictment against him, arguing that § 2423(c) is an unconstitutional exercise of the Commerce Clause powers. [CR Doc. 22]. The Government filed a response in opposition to Petitioner's motion, arguing that Congress had the authority to enact § 2423(c) under the Foreign Commerce Clause of the United States Constitution and that, even if not authorized by the Foreign Commerce Clause, §§ 2423(c) and (f)(1) are necessary and proper to the implementation of the international treaty obligations of the United States. [CR Doc. 23]. Two days later, this Court entered a text order denying Petitioner's motion to dismiss, noting that it would ultimately issue a written order. In that order, this Court declined to decide whether § 2423(c) was authorized by the Foreign Commerce Clause but nevertheless upheld its constitutionality, holding that it was authorized by the Necessary and Proper Clause of the Constitution, consistent with the United States' alternative argument. [CR Doc. 34]. The next day, Petitioner entered a conditional guilty plea, without a plea agreement, in accordance with Federal Rule of Criminal Procedure 11(a)(2), in which he reserved his right to appeal the denial of his motion to dismiss. [CR Doc. 24].

         C. Petitioner's Sentencing.

         The probation office submitted a presentence report (“PSR”), in which it calculated a preliminary Sentencing Guidelines term of life in prison, based on a total offense level of 43 (reduced from a level 44) and a criminal history category of I. [CR Doc. 32 at ¶¶ 43, 53: PSR]. The probation officer also noted, however, that Petitioner was subject to a statutory maximum of 30 years as to each offense, resulting in a total statutory maximum and Guideline term of 60 years in prison. [CR Doc. 32 at 19; see also U.S.S.G. § 5G1.1(a)].

         Responding to the draft PSR, the Government objected, first, to the inclusion of paragraphs in the PSR describing sexual contact between Petitioner and victims known as CV1 and CV4 as part of the offense-level calculation. [CR Doc. 30]. The Government explained that, although the sexual conduct engaged in by Petitioner included CV1's masturbating him and CV4's touching his penis, as well as his fondling both of the girls, his contact with these victims did not constitute “illicit sexual conduct” as defined in 18 U.S.C. § 2246 and should not be considered in calculating Petitioner's offense level. [CR Doc. 30 at 1-2]. The United States also objected to the failure of the probation officer to recommend a five-level enhancement under Sentencing Guidelines § 4B1.5(b), based on Petitioner's status as a repeat and dangerous sex offender against minors, noting that Petitioner admitted during his phone call to NCMEC that he performed oral sex on two eleven-year-old girls on at least four occasions. [CR Doc. 30 at 2].

         Petitioner objected to the draft PSR as well, challenging, in addition to the inclusion of his conduct toward CV1 and CV4 in the offense-level calculations, the probation officer's use of Sentencing Guidelines § 2G1.3, rather than § 2A3.1, in calculating Petitioner's base offense level. [CR Doc. 31]. Petitioner also objected to a vulnerable-victim enhancement, calculating a total offense level of 35 and an advisory Guidelines range of imprisonment of between 168 and 210 months in prison. [Id.].

         In response to these objections, the probation officer removed Petitioner's conduct toward CV1 and CV4 from the offense-level calculations but added a five-level enhancement based on Petitioner's status as a repeat and dangerous offender, consistent with the Government's objections. [CR Doc. 32 at 22]. The probation officer continued to apply § 2G1.3, noting that the commentary to that guideline includes § 2423 in its entirety. [Id. at 23].

         Also, in preparation for Petitioner's sentencing hearing, the Government submitted victim-impact statements from the victims of Petitioner's offense and their family members. CV2, who was 15 years old when she wrote the letter about four years after her abuse, wrote that she feels ashamed of herself, that “[e]verybody is pointing fingers at [her], ” that she does not know what to do, and that she “keep[s] on thinking about that thing.” [CR Doc. 43-3 at 4]. CV2 stated further that she “always ha[s] tears in [her] eyes” and that, “[f]or [her], [she] no longer exist[s].” [Id.].

         CV3 stated in her impact statement that she is ashamed of herself every day, she is ashamed before her mother, siblings, and friends, and her future is ruined, as everyone in the area knows what happened and points fingers at her when she passes by. [CR Doc. 43-3 at 8]. CV3 stated that she cries every day and that no one can console her, stating:

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.]. CV3's mother described believing that Petitioner was doing something good for her daughter, when, instead, he was abusing her. [CR Doc. 43-3 at 1]. According to CV3's mother, CV3 “has no hope in the future” and “lives in pain, ” does not do well in school anymore, and when CV3 and her mother walk around their neighborhood, “everybody stares at [them] and bad-mouths [them].” [Id.]. CV3's mother concludes, “[e]very time I look at her, it makes me sad, the way I see her being tormented by it.” [Id.].

         Like the other victims, CV4 stated that she has “great sadness” in her heart and that others in her neighborhood ridicule her, point fingers at her, talk about her, and humiliate her. [CR Doc. 43-3 at 5]. CV4 stated that, because of this reaction, she cannot walk around town and that “[e]very time [she] sit[s] down and think[s] about it, [she] ha[s] tears running in [her] eyes.” [Id.]. CV4's uncle corroborated CV4's reports of humiliation, stating that the entire family is bad-mouthed and ridiculed when they go outside, that they “live really badly, ” and that they “are like scars on the area.” [CR Doc. 43-3 at 7]. Finally, CV1's mother reported that she and her daughter “have been living in the woods as a result” of her daughter's abuse. [CR Doc. 43-3 at 6].

         This Court conducted Petitioner's sentencing hearing, during which the Court overruled Petitioner's remaining objections, CR Doc. 52 at 6-7, and calculated a total offense level of 43 and a criminal history category of I, resulting in a preliminary advisory term of life in prison, limited by the statutory maximum of 30 years as to each count of conviction, or 60 years, CR Doc. 52 at 7. During the sentencing hearing, the Court heard testimony from Petitioner and Ms. Bollinger, Dr. Magness, and Dr. William Tyson, a psychologist hired to testify about Petitioner's risk of recidivism, among others.

         One of those witnesses, Marie Major, ran an orphanage near the Village of Hope in Haiti and testified that it is not unusual for impoverished young girls in that area to offer themselves sexually in exchange for food because they are poor and hungry. [CR Doc. 52 at 117-19, 129]. Dr. Tyson testified to his examination of Petitioner and his conclusions that Petitioner is not a pedophile, notwithstanding his molestation of the girls in Haiti and his admission that he was sexually aroused by children, CR Doc. 52 at 139, 143-44, 157; that Petitioner is a good candidate for treatment, particularly if it is judicially imposed; and that Petitioner's risk for recidivism is low, Id. at 150-51.

         When given the opportunity to allocute, before the district court's pronouncement of sentence, Petitioner acknowledged that he “hurt a lot of girls, ” as well as his wife, and stated that he wanted help so badly that he “was willing to take the risk” of being punished for his conduct. [CR Doc. 52 at 168-69]. Petitioner regretted that he could not get help without “indict[ing] himself” and that he could not “have received the help that [he] needed before [his] disease progressed to the degree that it did.” [CR Doc. 52 at 169-70].

         Anthony G. Scheer, one of the two attorneys who represented Petitioner, then argued in favor of a 55-year variance, asking the Court to sentence Petitioner to five years in prison. [CR Doc. 52 at 172]. Although Petitioner, through counsel, acknowledged that he had “molested some girls in Haiti back in 2009, ” he argued that his life had primarily been one of service and requested that the Court impose a sentence that would enable Petitioner, who was 68 years old, to get out of prison before the end of his life. [Id. at 173-74]. Petitioner also noted that he voluntarily reported his offenses and that leniency in his case would encourage “every sex offender out there lurking in the shadows” to do what he had done. [Id. at 175-76]. Petitioner noted further that he had provided a detailed confession, engaged in therapy, and continued treatment through SAA. [Id.]. Petitioner argued that there was no significant risk that he would reoffend, such that there was no need for specific deterrence, and that by imposing a significant downward-variance sentence, the Court would encourage other offenders to come forward. [Id. at 177-78].

         In response to Petitioner's argument that a significant downward variance would benefit children by encouraging others to stop offending and to self-report, this Court asked Petitioner what a “five-year sentence say[s] to the victims and their families in Haiti and to future victims that consider coming forward against a powerful authority figure.” [CR Doc. 52 at 178]. In response, Petitioner's counsel stated that he did not think that the victims had “a strong interest” in a long sentence and that a lower sentence would not have a “palpably different” effect on them. [Id. at 178-79]. Petitioner also argued that even if there were people who would misunderstand a five-year sentence, it “would be worth it, ” if such a sentence caused even one offender to seek help, rather than continuing to victimize young girls out of fear of a long sentence. [CR Doc. 52 at 181].

         In response to Petitioner's arguments in mitigation, the Government noted that Petitioner did not express genuine remorse for his victims and, instead, seemed more remorseful that his wife and friends in Haiti were hurt. [CR Doc. 52 at 184]. The Government noted that Petitioner acknowledged that he “sexually acted out” but never said he was sorry to the victims and did not “own[] what he did to th[ose] children.” [Id.]. The Government noted further that it was recommending a 25-year sentence, which was more than a 50% reduction, and that Petitioner was asking the court to impose a 90% downward-variance sentence, a sentence the Government suggested would be “an insult to the victims.” [Id. at 185]. Addressing Petitioner's argument in favor of leniency based on his having self-reported his offenses, the ...


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