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Media Alerts - United States v. Bollinger - Fourth Circuit
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September 14, 2015
  United States v. Bollinger - Fourth Circuit
Headline: An American Minister in Haiti and the Long Reach of the Commerce Clause

Issue Presented: Whether the Prosecutorial Remedies and Other Tools to End the Exploitation of Children Act of 2003 (18 U.S.C. § 2423) is constitutional under the Foreign Commerce Clause or is necessary and proper to implement a U.N. protocol addressing the sale of children, child prostitution and child pornography.

Brief Summary: Lutheran Minister Larry Bollinger moved to Haiti in 2004 to help run a ministry in Port-Au-Prince that provided impoverished children with shelter, food, and spiritual guidance. Shortly after moving there, Bollinger began engaging in sexual conduct with minors under the age of 18. Specific to this case, Bollinger engaged in oral sex and fondling with two eleven-year-old girls who came to his ministry for help. After confessing his addiction to his wife, Bollinger returned to the United States for treatment. Bollinger admitted to his psychiatrist that he molested the young girls. The psychiatrist, under his duty to do so, then reported the conduct to the police even though Bollinger had been adamant he did not engage in illicit conduct in the United States. Shortly thereafter, Bollinger was arrested. The United States Government indicted Bollinger under 18 U.S.C. §§ 2423 (c) and (e) - the Prosecutorial Remedies and Other Tools to End the Exploitation of Children Act of 2003 - for engaging in non-commercial illicit sexual conduct with a minor after traveling in foreign commerce.

At trial, Bollinger did not deny he engaged in illicit sexual acts with under-aged girls. Instead, he challenged the constitutionality of the statute. Specifically, Bollinger argued the statute was an overreach of congressional authority into the foreign sphere. Bollinger contended the Commerce Clause of the Constitution could not justify the statute's reach because his acts were non-commercial and thus did not impact foreign commerce. In response, the U.S. government argued that because Bollinger used foreign commerce to travel to Haiti as required to be charged under the statute, it was constitutional.

On appeal, the U.S. Court of Appeals for the Fourth Circuit first noted that Congress' authority in the context of foreign commerce is broader than its authority in interstate commerce due to the lack of federalism concerns. To survive constitutional challenge, the court next determined that the Government need only show the statute was rationally believed to have a demonstrable effect on foreign commerce. Because the statute was meant to curb sexual tourism to impoverished nations with lax sexual misconduct rules, the court held this particular statute did have the requisite demonstrable effect and was therefore constitutional.

In reaching this holding, the court affirmed the long reach of U.S. law to control U.S. citizens traveling abroad. While stopping short of holding that anyone who travels in foreign commerce before committing a criminal act can be reached by U.S. law, the court did note that any U.S. citizen who engages in commerce with a foreign nation is akin to the U.S. herself engaging in such commerce with that nation. The holding suggests that U.S. laws could potentially be applied to govern citizens abroad even when they engage in criminal conduct that is less disturbing than that at issue in the instant case.

To read the full opinion, click here.

Panel: Judges Gregory, Harris, and Hamilton

Argument Date: 05/13/2015

Date of Issued Opinion: 08/19/2015

Docket Number: No. 14-4086

Decided: Affirmed by published opinion

Case Alert Author: Alex H. Kelly, Univ. of Maryland Carey School of Law

Counsel: 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

Author of Opinion: Judge Gregory

Case Alert Circuit Supervisor: Professor Renée Hutchins

Edited: 09/25/2015 at 02:36 PM by Renee Hutchins

    Posted By: Renee Hutchins @ 09/14/2015 09:27 AM     4th Circuit  

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