U.S. v. BOLLINGER, NO. 14-4086

Decided: August 19, 2015

The Fourth Circuit affirmed the district court and held that 18 U.S.C. § 2423(c) is constitutional because of the Foreign Commerce Clause.

Defendant, Larry Bollinger (“Bollinger”), is an ordained Lutheran minister who moved to Hati in 2004 to run a large ministry outside of Port Au Prince with his wife. In 2009, Bollinger, a self-proclaimed sex addict, began molesting young girls. Bollinger molested four girls. The first was a 16-or 17-year-old and the other three were each 11-years-old. Bollinger testified that the girls would come to the ministry and make themselves available to him and he then “took advantage of them.” After returning to the U.S., the minister attended a three-day intensive therapy session with Dr. Magness, a psychologist who treats clergy members who have sex addictions. Bollinger told Magness about the molestations, who had to report the molestations according to an informed consent form Bollinger signed. Magness reported the molestations and Bollinger was later arrested for the offenses.

Bollinger was charged 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). Bollinger moved to dismiss the indictment, arguing that Section 2423(c) is unconstitutional because it criminalizes non-commercial activity and exceeds Congress’s authority to regulate commerce under the Foreign Commerce Clause.  The district court denied Bollinger’s motion to dismiss and found that Congress had authority under the Necessary and Proper Clause to enact the statute as a rational means to implement the Optional Protocol. The district court then sentenced Bollinger to 25 yeas imprisonment. On appeal, Bollinger challenged the constitutionality of 18 U.S.C. § 2423(c) and the length of his prison sentence.

Regarding the constitutionality of 18 U.S.C. § 2423(c), the Fourth Circuit held that the Foreign Commerce Clause allows Congress to regulate activities “that demonstrably affect” foreign commerce. The Court reiterated that a rational basis exists to determine whether defendant’s activities, taken in the aggregate, substantially affect interstate commerce. Here, the Court concluded that it is rational to believe that prohibiting non-commercial sexual abuse of children abroad by Americans has a demonstrable effect on sex tourism and the commercial sex industry. Accordingly, the Court found 18 U.S.C. § 2423(c) to be constitutional as a result of the Foreign Commerce Clause.

As for Bollinger’s 25-year prison term, the Court disagreed with Bollinger’s argument that the district court committed both procedural and substantive error with regards to his sentence. Procedurally, the Court found that the district court had a “reasoned basis” for its sentence because it expressly recognized that Bollinger had self-reported and considered all of the other mitigating factors in its decision. Substantive reasonableness is determined by looking at the totality of the circumstances to determine whether the district court abused its discretion in applying the factors to be considered in imposing a sentence, per 18 U.S. Code § 3553(2). In this case, the Court determined that the district court’s sentence of a 60% downward variance was not unreasonable in light of its deferential standard of review, the statements of the victims, and the minister’s abuse of authority.

Full Opinion

Meredith Weisler

 

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