United States District Court, W.D. North Carolina, Charlotte Division
J. Conrad, Jr., United States District Judge.
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]. 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].
Petitioner's Underlying Criminal Conduct.
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].
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].
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.
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].
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].
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].
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].
Petitioner's Indictment and Guilty Plea.
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].
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.].
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].
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)].
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].
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.].
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].
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.].
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
[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.”
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].
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.
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
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].
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].
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].
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 ...